OFCCP Week In Review: January 6, 2020

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:

• EEO-1 Status Update
• OFCCP Updated the Federal Contractor Compliance Manual! (Late Reporting)

Friday, January 3, 2020: EEO-1 Status Update

The Equal Employment Opportunity Commission (EEOC) filed its fourteenth ‘every- three-week’ court-ordered status update in the case of National Women’s Law Center (NWLC), et al v. the Office of Management & Budget and the Equal Employment Opportunity Commission. The EEOC filing reported updated statistics for Component 2 employer filings.

Status of Response Rate

As of January 3, 2020, 86% of eligible filers have completed the submission of Component 2 EEO-1 data. This includes 85.3% of filers submitting Component 2 data for calendar year 2017 and 86.6% of filers submitting Component 2 data for calendar year 2018.

In the EEOC’s previous update (December 13, 2019), the response rate was 85.1%…so the percentage of employers eligible to file Component 2 reports has inched up less than 1% over the last three weeks. In related news, the NWLC filed its response to the EEOC’s (now second) request to the Court to allow the Commission to close the Component 2 filing portal to save the otherwise $150,000/week costs to keep it open. (The judge in October, 2019 had immediately denied the EEOC’s first request to close the portal shortly after the Commission so requested in a firm rebuff of the Commission). The NWLC has now again requested the Court to keep its existing Order in place which requires the EEOC to hold the reporting portal open until at least January 31, 2020.

We expect the Court to again issue a firm rebuff to the Commission’s latest attempt to shut the Component 2 reporting portal. The Judge (Tonya Chutkan) has twice previously ordered the EEOC to keep the portal open until it obtains the usual percentage of responses from eligible employer-filers from previous Component 1 filings = about 98% of eligible filers if the Commission holds the portal open for a year, or longer. The Commission has yet to explain to the Court why it would treat Component 2 filings differently from Component 1 filings (which portal it has held open to continue to receive Component 1 filings 9 months or more after the reporting deadline). The Commission’s position has been only that the Court should now close the Component 2 portal because its recent habit has been to no longer evaluate EEO-1 reports filed later than 6 weeks after the reporting deadline, even while continuing to accept these very late reports after the so-called 6-week filing “grace period.” In the case of Component 1 data, the EEOC wants to get on with the work of organizing, analyzing and reporting the Component 1 data. Accordingly, the Commission has become intolerant of late filers holding up its analyses. Ironically, too, there is no hurry to analyze the Component 2 filings since no federal agency privy to the data thinks the data are worthwhile to analyze to support their agency mission.

OFCCP Updated the Federal Contractor Compliance Manual! (Late Reporting)

The Office of Federal Contract Compliance Programs (OFCCP) quietly released the long-anticipated update (the last update was in 2014) to its Federal Contract Compliance Manual (FCCM). The update, dated December 23, 2019, included a catalog of revisions for quick reference. The FCCM guides OFCCP Compliance Officer conduct during Compliance Evaluations and Complaint investigations.

Many of the updates now bring the FCCM in line with current OFCCP regulations, for example, by including references to “sexual orientation” and “gender identity” which were new bases of legal protection announced only very recently in the waning days of the Obama Administration. The new FCCM also now makes specific reference to the Pay Transparency Provision. Other revisions align the Manual with recent Directives, like the Focused Review and Transparency Directives.  Contractors should take note of Appendix A-1 (the Standard Compliance Evaluation Report “SCER”). This form is the perfect resource for a self-audit, as it follows the audit process from the viewpoint of an OFCCP Compliance Officer.

Now in electronic form, the FCCM also allows for quick navigation throughout its eight chapters and references additional resources such as sample forms, sample letters, and a glossary of abbreviations.

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.