OFCCP Week In Review: November 23, 2020

• EEOC Financial Report Hypes Reduced Inventory, Record Recovery, and Mediation Success
• Comment Now on EEOC Enforcement Guidance on Religious Discrimination
• OFCCP Salutes our Veterans and Military Families
• DHS Extended Form I-9 Requirement Flexibility
• OFCCP Training on Veteran Focused Reviews
• Compliance in the New Administration
• Comment Now on VETS-4212 Report

Monday, November 16, 2020: EEOC Financial Report Hypes Reduced Inventory, Record Recovery, and Mediation Success

The U.S. Equal Employment Opportunity Commission (EEOC) announced the release of its 88-page Fiscal Year 2020 Agency Financial Report. In addition to financial information, the Report provides an overview of programs, accomplishments, and challenges for the past Fiscal Year (October 1st through September 30th). The EEOC is working off of a Strategic Plan for FY2018-2022.

As we reported last year, a significant focus of the Agency is to reduce the private sector charge inventory. This FY showed a reduction of 3.7% to 41,951, the lowest pending inventory in 14 years. This builds on a 12.1% decrease in FY 2019.

FY2020 Highlights

• A record financial recovery (more than $535 million) for victims of discrimination in the workplace. This includes $333.2 million for employees and applicants in the private sector, state and local government through mediation, conciliation, and other administrative enforcement, $106 million through litigation (the highest since 2004), and $96.2 million in monetary relief for federal employees and job applicants.
• The financial recovery for federal civilian employees continued at a scandalous rate. Federal civilian employees harvested almost 18% of the total financial recoveries the EEOC obtained in FY2019 [$106M (federal employees) vs $535,000,000 total] but while employing only about 1.7% as many employees in federal civilian employment as in the employment of private sector and state/local government employers combined [2.1M federal civilian employees vs 123.8M employees in the combined private sector and in state/local employment (107.8M private sector employees and 16M state/local employees)]. Federal employees are thus recovering financial remedies taken from federal tax revenues at almost 9½ times the rate of financial recoveries in the private sector and in state and local government employment (1.7% representation in the pool of employees vs 18% financial recovery rate).
• More than 2,690 outreach events in the private and federal sectors reportedly reached nearly 300,000 people.
• More than 6,700 successful mediations reportedly resulted in $156.6 million in benefits to charging parties.

Tuesday, November 17, 2020: Comment Now on EEOC Enforcement Guidance on Religious Discrimination

As we reported last week, the EEOC plans to update its Compliance Manual Section on Religious Discrimination. The Agency announced that it is now seeking public comment and the comment window is now open.

The proposed updated guidance reflects recent legal developments, emerging issues, and updates to the discussion of protections for employees from religious discrimination in the context of reasonable accommodations and harassment. It also expands the discussion of defenses that may be available to religious employers.

Comment Instructions

The 30-day input period ends on December 17, 2020. The Agency seeks input in narrative form (not a redlined version of the document). Comment online, via letter, email, or memoranda format. Mail hard copies to:

Public Input, EEOC, Executive Officer
131 M Street, N.E.
Washington, D.C. 20507

The Agency will post all input on www.regulations.gov. Be aware that email addresses may be visible, and participants should not include other personal information that they wish to remain private.

Wednesday, November 18, 2020: OFCCP Salutes our Veterans and Military Families

The Office of Federal Contract Compliance Programs (OFCCP) announced its gratitude to the thousands of active duty service members, veterans, and military families for their daily sacrifice in service to our nation. In recognition of National Veterans and Military Families Month, the Agency took the opportunity to spotlight its various Veterans Resources.

Wednesday, November 18, 2020: DHS Extended Form I-9 Requirement Flexibility

The Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced an extension through December 31, 2020 of its “flexibility policy” allowing certain employers to remotely complete Form I-9, Employment Eligibility Verification. The extended flexibility provision applies, however, only to employers and workplaces currently operating remotely due to COVID-19.

See the original news release for more information on obtaining, remotely inspecting, and retaining copies of the identity and employment eligibility documents to complete Section 2 of Form I-9. Employers should monitor the DHS and ICE websites for additional updates about when the extensions end and normal operations resume, although the Week In Review will continue to monitor these developments, too.

E-Verify participants which meet the criteria and choose the remote inspection option must continue to follow current guidance and create cases for their new hires within three business days from the date of hire.

See the DHS COVID-19 webpage for more information.

Thursday, November 20, 2020: OFCCP Training on Veteran Focused Reviews

In anticipation of the upcoming Veterans Focused Reviews (see our WIR in November 2019), OFCCP has begun to discuss what to expect for these new types of audits. Those interested in attending a webinar may sign up via Eventbrite. A copy of OFCCP’s slide deck is available here.

Thursday, November 20, 2020: Compliance in the New Administration

The National Industry Liaison Group (NILG) hosted John Fox to present a 90-minute webinar titled “Compliance in the New Administration.” John’s PowerPoints are here. Sharing his insider knowledge and experience, John explained the reality of how the transition of the presidency will work. He went on to cover how President-Elect Biden’s aggressive policy agenda will require Democrats to control the Senate to fully implement it and how OFCCP will otherwise be at the center of Biden’s civil rights agenda.

What’s Coming?

Pulling from the democratic party platform, John focused on civil rights and how the Biden administration will focus on:

• building a stronger and more fair economy;
• achieve universal, affordable, quality healthcare;
• and “heal the soul of America.”

You can listen to the presentation via the link on the NILG webpage.

Friday, November 21, 2020: Comment Now on VETS-4212 Report

The USDOL Veterans’ Employment and Training Service (VETS) announced the opportunity for public comment on the proposed information collection request for the Federal Contractor Veterans’ Employment Report VETS-4212. This is every three-year reauthorization of the VETS-4212 Report which the Paperwork Reduction Act and the rules of the Office of Management & Budget require. NOTE: While OFCCP inspects VETS-4212 Reports in certain OFCCP Compliance Evaluations, it is a VETS Rule (41 CFR Section 61-300.1(a)) which imposes the requirement on covered federal Government contractors to file the VETS-4212 Report and it is VETS which designs and sponsors the VETS-4212 reporting format.

The Agency seeks comments that:

• evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility;
• evaluate the accuracy of the Agency’s estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• enhance the quality, utility, and clarity of the information to be collected; and
• minimize the burden to collect information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, g.,permitting electronic submissions of responses.

This is your opportunity to formally communicate with VETS and influence its thinking about the design of the VETS-4212 reporting format if you see the need to improve it.

Comment on or before January 14, 2021 per the instructions in the VETS announcement linked in the first sentence of this WIR story requesting public comment.

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.