DE OFCCP Week In Review (WIR)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:

Thursday, May 23, 2019: OFCCP Released First Opinion Letter

OFCCP quietly released its first Opinion Letter. Last December Directive 2019-03 introduced the concept of Opinion Letters to OFCCP. Widely used by the Wage and Hour Division, Opinion Letters provide guidance on situations or circumstances that may be unclear to navigate per existing regulations.

The Question

Whether a college’s status as a conduit for Pell Grants makes it a covered Government contractor for the purposes of Executive Order 11246, as amended, (“E.O. 11246”), Section 503 of the Rehabilitation Act of 1973, as amended, (“Section 503”), 29 U.S.C. § 793, and/or the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended, (“VEVRAA”), 38 U.S.C. § 4212.

The Opinion

“Due to their separate statutory definitions, grants do not constitute federal procurement contracts. See University of Rochester v. Hartman, 618 F.2d 170, 176 (2nd Cir. 1980) (holding that a benefit claim was not compensable as a government contract under the Defense Base Act as the Government did not solicit the work nor did it “retain close control over the objectives, methods, or timetable of the project”). As E.O. 11246 applies only to government contracts, defined as “any agreement, or modification of an agreement, between any contracting agency and any person for the purchase, sale or use of personal property or non-personal services[,]” grants, as transfers that do not acquire “property or services for the direct benefit of the United States government” do not constitute federal procurement contracts and therefore are not sufficient to invoke jurisdiction under OFCCP laws and regulations over Non-Construction contractors. See 41 C.F.R. § 60-1.3.

Pell Grants involve the government transferring a sum of value to a recipient in order to further “a public purpose of support or stimulation[,]” in this case, that of a percentage of the recipient’s education. See 20 U.S.C. § 1070(b)(1); 31 U.S.C. §6304(1). They do not constitute an agreement “for the purchase, sale, or use of personal property or non-personal services,” that would qualify for contractor status. Therefore, solely serving as a conduit for Pell Grants does not render a post-secondary higher education institution a covered federal contractor subject to E.O. 11246, Section 503, or VEVRAA.”


Friday, June 7, 2019: May Employment Situation

U.S. Bureau of Labor StatisticsThe release of May’s Employment Situation shows unemployment numbers are relatively flat from last month. U.S. Secretary of Labor Alexander Acosta spotlighted that:

“For 15 months in a row, the unemployment rate has been at or below 4.0% as May’s unemployment rate remained at 3.6%, the lowest rate since 1969. Hispanic-Americans and Americans with disabilities maintained their series low unemployment rates at 4.2% and 6.3%, respectively.”


Unemployment Rate May 2019 May 2018
National (Seasonally adjusted) 3.6% (flat from April) 3.8%
Veterans (Not seasonally adjusted) 2.7% (up from 2.3% in April) 3.4%
Individuals with Disabilities (Not seasonally adjusted) 6.3% (flat from April)


Friday, June 7, 2019: Compliance Evaluation “Audit” Update

logo for the Office of Federal Contract Compliance Programs (OFCCP)We have received news that some Contractors have begun to receive Audit Scheduling Letters for Compliance Checks about which OFCCP had earlier alerted them via publication of the OFCCP CSAL. Employers, if you have one or more plants or offices on the recent OFCCP CSAL for a Compliance Check for which OFCCP has not yet sent you an audit Scheduling Letter, now is a good time to inform leadership (especially if you have not yet alerted your CEO or the person regularly receiving mail), “it’s coming!”

Additional Details

  • See our breakdown of the March 25, 2019, “CSAL”(Corporate Scheduling Announcement List).

The Indy ILG update informed us that the expectation was after closing audits from previous CSALs, Compliance Checks would be first on the new CSAL.


EEO-1 Component 2 Tracker

Official Seal of the EEOC featuring Bald Eagle and bannerIn light of numerous requests from Members for additional details on the still continuing EEO-1 Component 2 Hours Worked and Pay Data saga, we have decided to dedicate the last section each week in the WIR for updates (when available) and maintain a catalog of events for quick reference.

This week: The EEOC website now includes the following helpdesk information. However, the helpdesk is not scheduled to be fully operational until June 17, 2019

Toll-Free: (877) 324-6214


Week in Review Headline(s)/Key Takeaways
WIR 052819

EEOC Component 2 Updates!

  • June 17, 2019: rollout a “fully staffed Helpdesk” to answer e-mail and telephone call questions from filers;
  • July 15, 2019: open the 2017/2018 EEO-1 Survey Component 2 reporting portal.
WIR 051319

EEOC has a Quorum!

  • Janet Dhillon is now re-examining Component 2
WIR 050619

Decided: 2017 Pay Data Required

  • See “Fun Facts” for Government Contractor obligation vs. Covered employer obligation as well as consequences for not filing.

Appeal Filed on Component 2

EEOC’s First Progress Report

John Fox Blog Post

EEOC Planning to Open the EEO-1 Component 2 Pay Data Reporting Portal July 15, 2019

WIR 042219

EEOC Planning to Open the EEO-1 Component 2 Pay Data Reporting Portal July 15, 2019

WIR 040819

EEOC Responded to EEO-1 Pay Data Reporting Deadline

WIR 040119

DE & ASE advised the federal Court in Washington DC overseeing a challenge to the EEOC’s and OMB’s refusal to collect “hours worked” and “pay data” information that approximately 60% of Employers could not be ready to file until 2020

  • DE Survey Summary & Conclusion

Reminder: DE Members can access a full “E-Book” catalog of all Week-In-Review stories in the Connect Community.




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John C. Fox
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