OFCCP Week In Review: February 10, 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:

• OFCCP Director Craig Leen Is Not Gone Yet, And Maybe Not at All
  • Bonus Feature: Director Leen in Long-Term Limbo
• EEOC Recognized Black History Month
• Component 2 Pay Data Portal to Close
• U.S. DOL Event to Honor Women in Service
• EEOC’s 2020 Priorities

Monday, February 3, 2019: OFCCP Director Craig Leen Is Not Gone Yet, And Maybe Not at All

The White House announced President Trump’s “intent” to nominate OFCCP Director Craig Leen to be the Inspector General (IG) to the U.S. Office of Personnel Management (OPM). The OPM is the civilian Human Resource arm of the federal Executive Branch’s approximately 2 million employees. All major federal Executive Branch agencies have an Inspector General. OPM’s IG is dedicated to promoting accountability and transparency both within and outside of the agency. Its mission is to provide independent and objective oversight of OPM services and programs by conducting audits, investigations, and evaluations. The IG provides recommendations to help improve the efficiency and effectiveness of OPM’s operations.

What Does This Mean for OFCCP?!?!?

Week in Review readers can access the full inside scoop from John Fox, who predicts, “Director Leen will likely remain at OFCCP at least through the end of the year…”

Monday, February 3, 2020: EEOC Recognized Black History Month

Janet Dhillon, Chair of the Equal Employment Opportunity Commission (EEOC), issued a statement recognizing February as Black History Awareness Month.

“This Black History Month, let’s remember and celebrate the legacy that Frederick Douglass left us, and to dedicate ourselves to freedom and justice for all:

“In a composite nation like ours, as before the law, there should be … no white, no black, but common country, common citizenship, equal rights, and a common destiny.”

Friday, February 7, 2020: Component 2 Pay Data Portal to Close

In a surprise twist, the National Women’s Law Center (NWLC) and its co-plaintiffs in the EEO-1 Component 2 “hours worked” and “pay data” collection case joined with the defendants Equal Employment Opportunity Commission (EEOC) and the Office of Management and Budget (OMB) to file a joint status report to recommend to the Court that it allow the Commission to now shut the Component 2 reporting portal now that the Commission has received 89.2% of the Component 2 files available form eligible filers.

At the previous behest of the NWLC plaintiffs, the Court had repeatedly rebuffed the EEOC’s several formal requests to the Court seeking permission to shut down the EEOC’s Component 2 collection portal (costing the taxpayers about $150,000/week to remain open while gathering only small incremental percentages of additional Component 2 filings from late-filing eligible employers).  However, the parties now agree that the “EEOC may wind down its collection of Component 2 data on the timetable of its choosing.” Accordingly, the parties have jointly requested the Court to deem the collection complete and to allow the EEOC Component 2 collection portal to close.

However, because the EEOC has numerous record keeping requirements potentially applicable to the Component 2 “hours worked” and “pay data” responses it has collected, Plaintiffs have requested information about the retention of the data, and should the EEOC decide NOT to retain the data, have requested they be notified of such decision at least 60 days before the disposal of the data.

Note 1: The EEOC’s record retention requirement for EEO-1 file data is one year (for electronically filed reports–which are the vast majority of currently filed EEO-1 reports, including the just completed Component 2 filings). After the first year of retention, the EEOC’s Office of Research, Information and Planning (ORIP) offers the original electronic submissions to the National Archives & Records Administration (NARA). NARA typically receives the nation’s electronic EEO-1 Survey Reports and permanently stores them. If the EEOC receives paper copy versions of an EEO-1 Report, it stores the original record for one year after which it converts the documents to microfilm storage (no kidding), disposes of the hard paper original and then disposes of the microfilm after ten years from receipt, apparently of the paper record.

NOTE 2: One can just smell the coming litigation over access to the Component 2 data the EEOC has now collected but does not intend to analyze, should President Trump win re-election in November. No one should imagine this drama is over. We strongly suspect that we will still be providing our readers updates on this and related stories a year from now…at least. Many twists in the winding future road lie ahead.Here is the history of recent Component 2 filings which brought the parties to the Component 2 litigation together, finally:

Thursday, February 6, 2020: U.S. DOL Event to Honor Women in Service

The U.S. Department of Labor (DOL) announced an upcoming event, “Women in Service: A Conversation with Four Military Leaders on Blazing Trails in the Armed Forces.”

Hosted by the Women’s Bureau and Veterans’ Employment and Training Service, the panel will feature a discussion with four trailblazing African American women on leadership in the armed forces. The event will provide an opportunity to learn from the experiences of women military leaders, to celebrate their achievements, and to identify opportunities for women entering non-traditional industries and occupations.

Friday, February 7, 2020: EEOC’s 2020 Priorities

EEOC Chair, Janet Dhillon, announced five significant priorities for the Commission in 2020. According to Dhillon, “the Priorities build on the EEOC’s proud legacy of civil rights accomplishments and share the common theme of excellence, strategic innovation, and collaboration.  The five Priorities include to:

• continue to provide excellent customer service,
• continue to provide robust compliance assistance,
• enhance efforts to reach vulnerable workers,
• strategically allocate Commission resources,
• continue the EEOC’s efforts to be a model workplace.

For more details on each priority, see the full article on the EEOC webpage.

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.