OFCCP Week In Review: May 13, 2019

The DE OFCCP Week in Review (WIR) is a simple, fast and direct summary of relevant happenings in the OFCCP regulatory environment, authored by experts John C. Fox, Candee Chambers and Jennifer Polcer. In today’s edition, they discuss:

• DOL Budget Moves Along
• OFCCP Compliance Check Help
• EEOC has a Quorum!
• Indy ILG Updates
• Happy Military Spouse Day!

Wednesday, May 8, 2019: DOL Budget Moves Along

The House Appropriations Committee approved the fiscal year 2020 Labor, Health and Human Services, Education, and Related Agencies
Bill on a vote of 30 to 23. We reported last week on the introduction
and details of this Bill.

Up Next

The Senate Appropriations Committee will also publish a proposed budget in coming months. As a practical matter, too, the Senate will
drive the final budget number for OFCCP, as it has done for the past
five years. Ultimately, when both Houses have published their budgets and assuming the Senate does NOT propose the same budget for OFCCP as the House, the two Houses will meet “in conference” to arm-wrestle the final numbers in a compromise between the two Houses. Stay tuned!

Wednesday, May 8, 2019: OFCCP Compliance Check Help

OFCCP e-mailed an alert to help federal Government contractors further understand coming Compliance Checks based on the existing OFCCP Compliance Check Letter last used in the Bush Administration. Similar to the help page for Section 503 Focused Reviews, this Compliance Check webpage seeks to improve contractor Compliance Check readiness by offering the following information:

• Scheduling Letter. Read the official currently approved OFCCP Supply and Service Compliance Check Scheduling Letter and prepare the three requested documents:
  • Affirmative Action Plan (EO 11246, Section 503 & VEVRAA) results for the preceding year. NOTE: The recently Proposed revision to this letter (not yet approved for OFCCP’s use) asks instead for the “Written AAPs” not just the “results.”
  • Examples of job advertisements, including listings with state employment services. NOTE: Listings with local employment service delivery systems is only a requirement if your company is subject to VEVRAA regulations.
  • Examples of accommodations made for persons with disabilities. NOTE: The recently Proposed revision asks instead for “Requests made for accommodations and if they were denied or granted.”
• Scheduling List
• Federal Regulations
• FAQs
• Contact Information

Wednesday, May 8, 2019: EEOC has a Quorum!

The Senate confirmed (50-43) Janet Dhillon to be a Member of the Equal Employment Opportunity Commission (“EEOC”) for a term expiring July 1, 2022. Dhillon takes the role of Chair, which Victoria Lipnic has held (“acting”) since February 2017. Lipnic remains a Commissioner, just not the Chair.

We first mentioned Dhillon in July of 2017 when President Trump nominated
her to the EEOC. Her nomination, along with many others, stalled in the process, resulting in the need for The President to re-nominate Dhillon which he did in January 2019. Her appointment did not come without opposition from some Democrats, though. Concern arose in nomination hearings about Dhillon’s reluctance to opine that Title VII makes sexual orientation and gender identity
discrimination unlawful and her lack of enthusiasm for the current version of the EEO-1 Survey – Component 2 (pay data and hours worked) requirement.

Mr. Durbin (D-IL) vocally opposed, citing his concern “that Ms. Dhillon has declined to answer whether she would uphold the EEOC’s current position that the Civil Rights Act forbids employment discrimination on the basis of gender identity or sexual orientation.” Also vocal in opposition was Mr. Casey (D – PA) who expressed concern and disappointment that a Democratic nominee was not considered alongside the Republican nominee.

“…[S]ince the founding or the beginnings of the EEOC, people in both parties in the Senate have worked together to move forward nominees from both parties in tandem so the Commission could continue its essential work. Today this bipartisan process is being cast aside by the majority in the Senate because no Democratic nominee is being considered along with Janet Dhillon, who has been proposed by the administration. My colleagues in the majority have decided to abandon this bipartisan cooperation.”

What does this mean for the EEO-1 Survey, Component 2 (pay and hours worked data)?

Let’s flashback to September 2017 when Janet Dhillon, Daniel Gade, and Carlos Muniz testified (see 1:40 minutes into the linked video) before the U.S. Senate Committee on Health, Education Labor & Pensions in a Hearing to consider their nominations to the EEOC. Dhillon responded that the EEOC’s focus on enforcing laws is an important priority and that she would work with the career staff to see what additional data the Commission needs to enforce equal pay laws.

Dhillon added that the pay reporting requirement would have benefited from “a more vigorous” rulemaking process and then went on to say, “It’s unfortunate that the Agency did not incorporate the input of a number of stakeholders who had suggested revisions to the regulations that could have improved it.”

Bottom Line

Nominee Dhillon promised to re-examine the Component 2 pay data and hours worked EEO-1 Survey so one may only assume Commissioner Dhillon will now go to work as the EEOC Chair to eventually propose a new Component 2 Survey for 2019 data (to be reported in 2020) and beyond.

The Commission today – three makes a quorum!

• Janet Dhillon, Chair
• Victoria A. Lipnic, Commissioner – term expires July 1, 2020
• Charlotte A. Burrows, Commissioner – term expires July 1, 2019
• Vacant
• Vacant

Friday, May 10, 2019: Indy ILG Updates

The Indiana Industry Liaison Group hosted its quarterly meeting with guest speakers from OFCCP, the EEOC, and a special treat, Lauren Hicks, former OFCCP District Director of Indianapolis, now
Of Counsel with Ogletree, Nash, Smoak & Stewart.

Highlights from OFCCP Acting Indianapolis District Director, Maxine Manus

• District Offices will continue to exhaust the current compliance evaluations in the queue before tackling the 2019 Scheduling List.
• Once on the 2019 List, Compliance Checks will most likely be the first type scheduled. They expect a 95% Notice of Compliance rate as OFCCP intends to offer technical assistance if items are not up to par and only issue a Notice of Violation if an item is entirely missing or not completed.
• OFCCP Managers have completed Compliance Check Review procedures. Compliance Officers are attending Compliance Check training now and up next is Section 503 Focused Review training for both OFCCP Managers and Compliance Officers.
• When a contractor asked if there was a way to limit the burden on employers which have received a large number of Compliance Evaluations, Director Manus responded “there is nothing [OFCCP] can do” to lighten that burden. OFCCP cannot skip or show favoritism to any contractor.

Highlights from EEOC Outreach and Education Coordinator, Brien Shoemaker

• EEOC recently completed “trauma-informed training.” This training focuses on techniques and awareness for interviewing victims of sexual harassment.
• EEOC is now on Instagram!
• EEOC has a new Vision! “Respectful and inclusive workplaces with equal employment opportunity for all.”

Highlights from Lauren Hicks

Now that she is on “the other side,” Lauren can provide a unique viewpoint to her current client experiences with OFCCP regulatory issues. For instance, in a recent on-site Corporate Management Compliance Evaluation (“CMCE”), OFCCP asked her client to take agency investigators on a tour of the facilities, specifically to every bathroom to ensure ADA compliance. Her take with CMCEs was that they are/will include a focus on Section 503 compliance. Contractors should be aware and prepare Section 503 compliance regardless of the type of Compliance Evaluation they are selected to undergo.

Tips from DirectEmployers

• Reach out to your local Vocational Rehabilitation (“Voc-Rehab”) team!
• Make sure your EEO-Tagline is correct!
• Make sure you have accommodation procedures on your website and review to ensure anyone requesting an accommodation receives the assistance needed!
• DE Members: review our compliance Tip sheets on both, in the Connect Community, or e-mail Jennifer Polcer for more info.

Friday, May 10, 2019: Happy Military Spouse Day!

On Military Spouse Appreciation Day we honor the contributions and sacrifices made by military spouses. America’s military spouses are the backbone of the families who support our troops during mission, deployment, reintegration and reset. Military spouses are silent heroes who are essential to the strength of the nation, and they serve our country just like their loved ones.

• OFCCP published frequently asked questions that outline the protections and resources available to military spouses.
• The Department of Labor has several programs in place to actively reduce barriers to employment faced by military spouses.

Thank you, military spouses!

THIS COLUMN IS MEANT TO ASSIST IN A GENERAL UNDERSTANDING OF THE CURRENT LAW AND PRACTICE RELATING TO OFCCP. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. COMPANIES OR INDIVIDUALS WITH PARTICULAR QUESTIONS SHOULD SEEK ADVICE OF COUNSEL.