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 Cynthia L. Hackerott. In today’s edition, they discuss:
- New Portal Gives Contractors Another Tool To Submit Objections To EEO-1 Component 1 Data FOIA Disclosure
- GAO Report Concluded Programs for Workers Displaced by Automation Should Focus on Skills for In-Demand Jobs
- VETS’ Employment Navigator Pilot Program Added Nine More Partners
- No Love Lost at the EEOC: Two Republican Commissioners Write a WSJ Op-Ed: “An Administrative Power Grab at the EEOC” Detailing The Chair’s Behind-The-Scenes Political Shenanigans
- OFCCP Announced Via E-Mail and FAQ that It Demands Colleges and Universities “Certify” their AAPs and to Register to Do So Through a New Portal for Institutions of Higher Learning
- OFCCP Webinar Announced Yet Another Document Delivery Portal: This Time for Construction Contractors
- Federal Appellate Court Narrowed An Injunction Freezing The Federal Contractor COVID-19 Vaccination Mandate To Only States And Parties In The Litigation
- EEO-1 Requester For Federal Contractor EEO-1 Consolidated Component 1 Data Is Not Sure What To Do With The Data Since He Does Not Have It Yet, But He Generally Wants To Report On Federal Contractor Diversity
- In Brief
- Looking Ahead: Upcoming Date Reminders
Monday, August 22, 2022: New Portal Gives Contractors Another Tool To Submit Objections To EEO-1 Component 1 Data FOIA Disclosure
As promised in its Friday, August 19th Federal Register Notice (87 FR 51145), OFCCP implemented an online portal to help contractors process objections to a reporter’s Freedom of Information Act (FOIA) request for EEO-1 consolidated Component 1 Survey data. The Notice explained that Will Evans of the Center for Investigative Reporting (CIR) made a FOIA request “for all Type 2 Consolidated Employer Information Reports, Standard Form 100 (EEO-1 Report), filed by federal contractors from 2016-2020.” OFCCP also added a landing page about the portal and a corresponding FAQ section. Written objections to the FOIA request are due by September 19, 2022.
What is a “Type 2 Consolidated Report”?
The EEO-1 Survey Component 1 data collection has various report types seeking the race/ethnicity and sex, and ethnic data for employees to be reported in nine Job categories with one divided into two parts for a total of ten reporting categories at various kinds of employer establishments. All multi-establishment companies must submit a “Type 2 Consolidated Report,” often called the “consolidated report.” The Type 2 Report must include data for all employees of the company (i.e., all employees at headquarters as well as all establishments) categorized by race/ethnicity, sex, and job category. Multi-establishment companies are also required to submit: (A) one “Type 3 Headquarters Report”; (B) a Type 4 Establishment Report for each establishment with 50 or more employees; and (C) a Type 8 Establishment Report for each establishment with fewer than 50 employees. All of these reports must include employee data for each establishment categorized by race/ethnicity, sex, and job category.
Single-establishment companies are required to submit only one EEO-1 Component 1 Report, known as the “Type 1 Single-Establishment Report.” These reports must include data for all the company’s employees categorized by race/ethnicity, sex, and job category. For more information on the various EEO-1 Survey report types, see: https://www.eeocdata.org/pdfs/EEO-1_Fact_Sheet.pdf.
Note: The portion of the report that the EEOC refers to as “Component 1” requires covered private sector employers to provide workforce profiles by race, ethnicity, sex, and job category. As explained above, the Type 2 Consolidated Report is one of the various Component 1 report types. The Type 2 Consolidated Report for Component 1 is not to be confused with the “Component 2” pay data reporting. The EEOC (not OFCCP) added Component 2 for one filing cycle – which collected aggregate data on pay ranges and hours worked – for a limited run during the reporting years 2017-2018. (For recent developments on Component 2, go here and here.)
The reporter requested data from the Type 2 Consolidated Report for Component 1
Since the reporter first submitted his FOIA request in 2019, he amended it multiple times, according to OFCCP. Initially, he requested “[a] spreadsheet of all consolidated (Type 2) EEO-1 reports for all federal contractors for 2016.” In other words, he requested a spreadsheet of all Type 2 Consolidated Reports for Component 1. He made his most recent amended request on June 2, 2022, “to include Type 2 EEO-1 reports for all federal contractors, including first-tier subcontractors, from 2016-2020.”
In Question 3 of its FAQs regarding the portal, OFCCP clarified the scope of the request as follows:
“The request seeks all Type 2 Consolidated EEO-1 Report demographic data (i.e., “Component 1” EEO-1 Reports) submitted by federal contractors and first-tier subcontractors from 2016-2020. The Type 2 Consolidated EEO-1 Report is one of several different types of reports that are filed by entities with multiple establishments. EEO-1 reports filed by single-establishment contractors (Type 1) and other EEO-1 reports filed by multi-establishment contractors (Types 3, 4, 6, and 8) are not covered by the request. EEO-1 reports containing compensation information (i.e., “Component 2” EEO-1 reports), which were collected by the EEOC, are also not covered by the request.”
Agency believes the data requested may be protected from disclosure as confidential commercial information
OFCCP stated it has reason to believe that the information requested may be protected from disclosure under FOIA Exemption 4, which protects the disclosure of confidential commercial information. However, the agency has not yet determined whether that exemption protects the requested information from disclosure. Accordingly, OFCCP requested that entities that filed Type 2 Consolidated EEO-1 Reports as federal contractors at any time from 2016-2020, and object to the disclosure of this information, submit those objections via the portal by the due date.
The agency will evaluate the responses its collects from the web form via the portal to determine whether the requested information includes confidential trade secret, commercial, or financial information that should be withheld under FOIA Exemption 4. OFCCP will inform the company and the FOIA requester of its decision to withhold or disclose the requested data.
OFCCP detailed information contractors should include in their written objections
Item #10 of the FAQ sets forth what information OFCCP is seeking from objectors. It mirrors the inquiries contained in the web form of the online portal. Specifically, it states:
“Contractors should include the first and last name of their company’s point of contact (POC), the POC’s phone number and email address, the company’s name and address and the parent company’s EEO-1 unit number.
Contractors should also provide as much information as possible addressing why they believe their Type 2 EEO-1 Report data should not be released under FOIA, including whether the information is commercial/financial and confidential. At a minimum, OFCCP suggests that written objections address the following questions:
- Do you consider information from your EEO-1 Report to be a trade secret or commercial information? If yes, please explain why.
- Do you customarily keep the requested information private or closely held? If yes, please explain what steps have been taken to protect data contained in your reports, and to whom it has been disclosed.
- Do you contend that the government provided an express or implied assurance of confidentiality? If yes, please explain. If no, skip to the next question.
- If you answered “no” to the previous question, were there expressed or implied indications at the time the information was submitted that the government would publicly disclose the information? If yes, please explain.
- Do you believe that disclosure of this information could cause harm to an interest protected by Exemption 4 (such as by causing genuine harm to your economic or business interests)? If yes, please explain.”
The web form of the online portal asks the following additional question:
- “Are there other legal issues OFCCP should be aware of? If yes, please explain.”
OFCCP strongly recommends contractors use the portal, but will also accept comments via email or U.S. mail
Contractors which do not want to use the portal may also submit written objections via email or by mail. Note that OFCCP must receive contractor responses no later than the September 19, 2022, due date.
Tuesday, August 23, 2022: GAO Report Concluded Programs for Workers Displaced by Automation Should Focus on Skills for In-Demand Jobs
Workforce programs could better serve displaced workers and those at risk of losing their jobs to automation by addressing the challenges those workers face in obtaining in-demand jobs, a new US Government Accountability Office (GAO) report concluded. “In-demand jobs” means those jobs which the U.S. Department of Labor (USDOL) projects will grow fastest in the next 10 years. The report is entitled “Workforce Automation: Insights into Skills and Training Programs for Impacted Workers.” It reviewed available USDOL data and contained insights from case studies in four states that were diverse across jobs and geography, and included other workforce stakeholders as well.
Workers with low education levels performing routine tasks are most at risk
Workers with lower levels of education and who perform routine tasks, such as cashiers or file clerks, face the greatest risks of their jobs becoming automated, the report notes. And automation continues to rise. Researchers estimate that, in the future, anywhere from 9% to 47% of jobs could be automated.
Moreover, research showed a widening gap between the skills needed for certain jobs and the skills of workers available for these jobs. This gap is especially visible in industries with high degrees of automation, such as health care, information technology, and manufacturing, the report pointed out. Plus, historically low unemployment has increased difficulties for employers looking to fill jobs involving skills needed for in-demand jobs, the report noted.
In-demand jobs require soft skills, process skills, & specific expertise skills
The USDOL’s data indicate that the skills needed for in-demand jobs will include a mix of:
- soft skills – such as interpersonal skills to successfully interact with people,
- process skills that help a person acquire knowledge quickly; for example, active learning and critical thinking, and
- specific technical expertise skills – like equipment maintenance.
The Department’s data also showed that in-demand jobs with a greater number of “important” skills tend to require more education. Important skills include active listening, social perceptiveness, and critical thinking.
To these points, the GAO included the following chart on “Skills Deemed Important in the Top 20 In-Demand Occupations, by Education Level Required”:
Workforce programs can help impacted workers by addressing barriers to training
Even though some in-demand jobs with skills such as judgment and management might be more resistant to automation, workers trying to grow their skills face challenges, the report noted. In interviews with the GAO, workforce stakeholders said that training programs sometimes focus on resume writing, interviewing skills, and getting a job quickly, which could lead to a short-term or low-wage job. Instead, such training should build on workers’ existing competencies to help them build skills for high-quality jobs, including obtaining industry-recognized credentials. They also said that access to training presents a key challenge to obtaining skills needed for in-demand jobs. Workers would benefit from better solutions related to childcare concerns, scheduling, financial hardships, and/or transportation and geographic barriers, the report pointed out.
To address these needs, the interviewed stakeholders proposed strategies including: (1) focusing training content on in-demand skills; (2) designing programs to maximize their accessibility; (3) increasing investment in training; and (4) collaborating with other workforce stakeholders to better serve workers displaced by automation.
Wednesday, August 24, 2022: No Love Lost at the EEOC: Two Republican Commissioners Write a WSJ Op-Ed: “An Administrative Power Grab at the EEOC” Detailing The Chair’s Behind-The-Scenes Political Shenanigans
Guess who is not coming to each other’s houses for dinner? Tensions simmer in every administration on the U.S. Equal Employment Opportunity Commission (“EEOC”). Those tensions have been particularly strong, however, since the arrival of President Biden’s pick last year of Charlotte A. Burrows to Chair the Commission. EEOC insiders have whispered that the Commission might be much more harmonious if President Biden had elevated his other Democratic choice (Jocelyn Samuels) to sit on the Commission as Chair. Commissioner Samuels is currently the Vice Chair of the Commission and is widely respected inside and outside the Commission as a legal scholar dedicated to her craft.
Tensions have flared up in recent months and then bubbled over last week with the Wall Street Journal’s publication of a prominent Op-Ed article by two of the Commission’s most prominent Commissioners, Janet Dhillon (Republican, and former Chair of the Commission during a portion of the Trump Administration) and Keith E. Sonderling, Republican Commissioner President Trump nominated (and served as Vice Chair of the Commission) and who has taken a leading role on the issue of employer use of Artificial Intelligence in employment matters.
Their article detailed “An Administrative Power Grab at the EEOC” and is an intriguing short read we will leave to your reading pleasure rather than to digest it here. The article explains how the EEOC Chair can exercise her considerable administrative authority to manipulate substantive policy through behind-the-scenes maneuvering and DESPITE a 3-2 majority of Republican Commissioners on the 5-member Commission.
We previously wrote a WIR story in June 2021 about one such subterfuge. It allowed a major change of policy to leave the Commission branded as Commission settled and final policy, but without a Commission vote. The Republican Commissioners, which then and now, command a 3-2 majority of Commission Members, subsequently took umbrage with both the substance of the Chair’s policy change camouflaged as a “technical assistance” guidance document and with the procedure she employed to not call for a Commission vote as to the at-issue new policies. Shortly thereafter, a federal court quickly enjoined the Chair’s guidance memo and set it aside because it did not properly interpret Title VII as we wrote about in this WIR article: “Federal District Court Judge In Tennessee Blocked Enforcement Of Controversial EEOC & DOE Guidance Documents On Bostock.” That must hurt when the EEOC Chair is told by a federal Court that the interpretive policy document she rushed out the door, does not properly interpret the statute she is primarily charged to enforce.
The 3-Commissioner Republican Majority Does Not Give Them the Power to Set EEOC Policy. Say What?
EEOC Commission Meeting Rules are like volleyball rules: you only get points when you are serving. But, at the EEOC, you only get to “serve up policy” issues when you are the Chair of the Commission. And Title VII allows the President to identify an EEOC Commissioner of his party to be Chair of the EEOC, the rest of the time during which Republicans are not in possession of The White House, Republican EEOC Commissioners can merely “block the ball” to prevent the Democrats from scoring by voting in new policies which do appear on the EEOC Agenda.
And, given the Chair’s broad powers to run the administrative portions of the EEOC, she possesses the power to frame the agenda for Commission meetings. That means The Chair of the EEOC may simply decline to put any particular item on the agenda for discussion and decision, or to even have substantive policy decision-making meetings. So, if and when Republican Commissioner Dhillon loses her position as Commissioner of the EEOC, and the Senate can schedule a vote on the pending nomination President Biden made of a new Commissioner to replace Commissioner Dhillon, Democrat Commissioners will then hold a 3-2 Member and vote majority. Then watch as the coming 3-2 Democrat majority on the Commission may thereafter again put substantive issues on the EEOC meeting agendas and vote them in as official policy. Then, wait for the Democrat majority Commission, if it does convene during the remaining 2+ years of the current Biden Presidency term, to vote in a new Component 2 Pay and Hours worked requirement for employers (and joined this time by the OFCCP as to federal contractors).
The currently EEOC could quickly change policies following the swearing-in of a new Democrat to sit on the Commission. There are currently only about 50 tentatively scheduled “Legislative Days” left in this calendar year, and thus in this Congressional term (ending January 3, 2023). The race is thus on right now for Senate Majority Leader Chuck Schumer (D-NY) to find time in the busy Senate to hold a full floor vote on the pending Biden nominee for a seat on the Commission.
We previously wrote about that controversial nomination here on May 31, 2022 when it stalled in the Senate Health Education, Labor and Pension Committee (“HELP”). If Senate Majority Leader Schumer is unable to get a successful floor vote before the Senate’s last session in December 2022, the President’s nomination of Ms. Kopana Kotagal will time out as a new Congress convenes on January 3, 2023.
And, if the new Senate in the next Congressional term is Republican controlled in what currently looks like a very close coming set of Senate races, it is highly unlikely the new Senate Republican Majority Leader would ever allow a vote on the Senate Floor on a new Biden appointee to the EEOC. And that assessment assumes that such a new Biden nominee could even get out of Committee once a new nomination occurred and the full Senate nomination process started all over again, beginning with a hearing before a Republican majority on the HELP Committee.
On the other hand, even though President Biden has adopted President Trump’s strategy to use the limited U.S. Senate Floor time available to him to hold votes on nominees to the federal judiciary, he does have 50ish tentatively scheduled Senate Legislative days available to him. Moreover, control of the EEOC is likely a sufficiently high enough policy agenda item for President Biden that he would “waste” a federal judgeship vote on a vote for a non-judicial nominee like Ms. Kotagal. However, Senator Schumer must first “count votes” in the U.S. Senate for Ms. Kotagal to make sure that he has all 48 Democrat and both Independent votes Schumer would need to force a 50-50 tie vote on the U.S. Senate Floor. A 50-50 tie vote would then throw the Kotagal nomination to VP Kamala Harris to cast the tie-breaking vote to cause Ms. Kotagal to be finally seated on the EEOC.
So, the political drama continues on Capitol Hill. Let’s see if Ms. Kotagal’s nomination pops up in coming weeks after the U.S. Senate reconvenes on Tuesday, September 6th after its almost month-long summer break.
Thursday, August 25, 2022: OFCCP Announced Via E-Mail and FAQ that It Demands Colleges and Universities “Certify” their AAPs and to Register to Do So Through a New Portal for Institutions of Higher Learning
OFCCP has continued its sudden love affair with electronic document delivery portals, and has again proceeded to impose new substantive requirements on the regulated community without formal Rulemaking needed to impose the new OFCCP regulatory “requirements.” In this latest episode, OFCCP simply informed stakeholders via a short and informal email that “educational institutions will now register through the OFCCP Contractor Portal using their Integrated Postsecondary Education Data System (IPEDS) unique identification number (UNITID or IPEDS ID) and Employer Identification Number. In a referenced FAQ, OFCCP also added, by the way, that colleges and universities “must” thereafter “certify” their Affirmative Action Programs through the Portal.In an accompanying FAQ # 1, OFCCP bluntly explained the purpose and utility of its new portal for Institutions of Higher Education not otherwise announced in its e-mail notice and surfaced this latest new “certification” requirement:
“1. What is the Contractor Portal?
The Contractor Portal is a new OFCCP platform where covered federal contractors and subcontractors (“contractors”) must [yellow highlighting added] certify whether they are meeting their requirement to develop and maintain annual AAPs. Scheduled contractors will also be able to use the portal to upload their AAP(s) during a compliance evaluation.”
Of course, OFCCP earlier this year made good on its statements first made last year that it would build an electronic portal in which Supply and Service Contractors (other than colleges and universities) “must” “certify” their Affirmative Action Plans (“AAPs”). OFCCP called that portal its AAP Verification Portal. OFCCP did so, however, without the benefit of the usual formal Rulemaking to permit new compliance “requirements.” As a result, less than half of the covered federal Government Supply & Service contractor community agreed to voluntarily register in the Supply & Service portal or to “certify” their AAPs. This was so despite an OFCCP “full court press” and year-long campaign to both push contractors to voluntarily comply and to then threaten contractors with audits if they failed to register in the OFCCP portal and to “certify” that they had developed their Affirmative Action Programs.
Last week’s OFCCP’s notice to higher education stakeholders also referred educational institutions to the OFCCP Contractor Portal Landing Page to access the Contractor Portal FAQs and the updated (as of August 2, 2022) OFCCP Contractor Portal User Guide (pages 12-23) for detailed instructions on the registration process.
Further, the Contractor Portal FAQ Question #4 under “Registration” states:
“Educational institutions may develop a single AAP or multiple AAPs, depending on their organizational structure. To account for these flexibilities and possible variations in AAP development, educational institutions will certify compliance for all AAPs associated with their 6-digit IPEDS ID.”
The agency offers technical assistance via its OFCCP Contractor Portal Technical Help Desk or by phone at: 1-800-397-6251.
Friday, August 25, 2022: OFCCP Webinar Announced Yet Another Document Delivery Portal: This Time for Construction Contractors
OFCCP calls it the “Notification of Construction Contract Award Portal (NCAP).” With the creation of this, its fourth portal (or sub portal, depending on how you want to split electrons) after the AAP Verification Portal, the OFCCP Contractor Portal (initially launched contemporaneously with the AAP Verification Portal to allow those willing federal contractors to submit their Affirmative Action Programs under audit to OFCCP), the above announced FOIA EEO-1 Request Objection Portal, and the above-announced Higher Education registration portal within the OFCCP Contractor Portal, OFCCP appears to be going into the electronic data delivery portal business.
OFCCP admits (when asked), however, that it does not have the legal authority to compel contractors to file information with the agency in electronic or digital form (as the agency would prefer). While we have heard from many contractors that they prefer the ease of delivery of documents to OFCCP in electronic and digital format, this issue nonetheless appears to be of some great concern to a segment of the federal contractor community. We continue to get many inquiries which have been coming in since OFCCP first announced the Contractor AAP Verification Portal about OFCCP’s legal authority to compel contractors to deliver documents in electronic and/or digital format.
Also, OFCCP has taken no steps to publish a proposed Rule to require contractors to file documents with it via electronic and/or digital means that the agency otherwise has a right to access in paper form. Rather, it appears that OFCCP is going to simply rely on contractors to either (a) believe/assume OFCCP has the inherit right somehow to demand electronic and digital document deliveries, or (b) feel it is in their interest to voluntarily deliver electronic and digital documents to OFCCP.
OFCCP intends its latest portal to serve the agency’s need for construction contractor document deliveries. Rather than filing a Proposed, let alone Final, Rule, OFCCP instead issued informally, via e-mail, a “Notification of Construction Contract Award Portal (NCAP).” OFCCP’s NCAP landing page revealed that OFCCP’s intent in developing this online platform was “to modernize how the agency receives required notices about construction contract and subcontract awards.”
OFCCP hopes that this construction contractor portal will be the primary method construction contractors will use to enter, submit and track contract award notifications for OFCCP’s review. In stating, as the agency has, that OFCCP anticipates that the Construction Contract Award Portal will eliminate or at least reduce the need to submit contract award notifications via mail or email, it implicitly acknowledged, again, that it cannot compel contractors to deliver documents to OFCCP in electronic and digital form unless the contractor voluntarily chooses to do so. So, pick your poison.
For Supply & Service Contractors reading this Blog and unfamiliar with the unique requirements of OFCCP’s construction contractor Rules, please know that OFCCP’s construction contractor enforcement scheme has always required document submissions not otherwise routinely required to be delivered to the OFCCP from Supply & Service contractors. Specifically:
“OFCCP regulations, require construction contractors, contracting officers, applicants for construction contracts and covered non-construction contractors to provide OFCCP with [a] written notice – within 10 working days – of an award of a federal or federally-assisted construction contract or subcontract in excess of 10,000 dollars,…”
noted OFCCP Director Jenny Yang at the outset of a webinar held in conjunction with the launch of OFCCP’s construction contractor portal. See 41 CFR 60–4.2(c). [Note: The regulations are silent as to any requirement that this notification must be submitted online.]
Prior to the launch of the OFCCP construction Portal, such notices were submitted to OFCCP’s Regional District or area offices, by fax, snail mail, or email, Yang said. The new OFCCP construction contractor portal will make it “easier and cost-effective for contracting officers and contractors to submit notices of construction contract awards in a secure, electronic fashion,” she asserted. “Submitters will also receive confirmation that their notices were successfully transmitted, and NCAP will provide the agency with more timely and complete information on federal contracts such as the contract to (sic) start and end dates,” the Director added.
The portal’s launch comes at “a critical time for the federal government,” Yang observed. “Historic investments in the country’s infrastructure will increase the number of new federal construction contracts and contractors. The information you provide through NCAP will play an important role in enabling OFCCP to more efficiently schedule and perform compliance reviews to ensure that companies doing business [with the federal government met their] equal employment opportunity commitments.”
The White House Office of Management and Budget (OMB) has approved the Construction Contract Award Notification Form (Form CC-314) (as part of OFCCP’s Construction Recordkeeping and Reporting Requirements), said Daniel Calamari, Acting Director of the Branch of Data Systems in OFCCP’s Program Operations Division. However, OMB has no request from OFCCP to allow for the development of an electronic document delivery portal, or notice to OMB of any Rulemaking providing public Notice or seeking public Comment, as the Administrative Procedure Act requires.
The OMB’s specific webpage on this form contains links to pdf versions of the same form available via the NCAP. The webpage (as of Friday, August 26, 2022) indicates that the CC-314 form is “printable only” however, and is not available electronically. Nevertheless, in its Supporting Statement submitted to OMB on April 8, 2021, regarding the reauthorization of its Construction Recordkeeping and Reporting Requirements (located here), OFCCP does mention the NCAP but states only that the agency was contemplating the development of an electronic filing portal. Specifically, OFCCP’s Supporting Statement said:
“OFCCP seeks the reauthorization of the Construction Contract Award Notification Form …. This form is currently approved in paper and electronic format. The electronic form will eventually be accessible via an online portal, the Notification of Construction Contract Award Portal (NCAP), and the agency will include a batch upload feature for the portal that will allow contractors to submit information for multiple notices simultaneously. OFCCP seeks to request new, additional information in the form, such as the contractor’s email address and whether they are a prime or subcontractor.”
Following a Notice and Comment Period on OFCCP’s request to reauthorize use of the CC-314 form (not the NCAP), OMB approved the requested changes on July 6, 2021, through July 31, 2024. Of note, OFCCP’s April 19, 2021, Federal Register Notice (86 FR 20417) stated merely that OFCCP sought reauthorization of Form CC-314, but made no mention of the NCAP.
Other webinar presenters provided details on NCAP’s landing page and a demonstration on how to use the portal. The landing page includes: Frequently Asked Questions (FAQs); How-To Videos; NCAP Portal Access button; a User Guide; and a link to its Technical Support request webpage.
Friday, August 26, 2022: Federal Appellate Court Narrowed An Injunction Freezing The Federal Contractor COVID-19 Vaccination Mandate To Only States And Parties In The Litigation
In a 2-1 opinion, the U.S. Eleventh Circuit Court of Appeals (Atlanta) narrowed a December 7, 2021 Order the (lower) federal District Court for the Southern District of Georgia had entered. The District Court had initially entered a nationwide injunction that had frozen implementation of the Biden Administration COVID-19 vaccine mandate requirement as to employees of federal contractors/subcontractors. The District Court had later on January 21, 2022, reaffirmed its December decision and Order and clarified that it applied only to the at-issue vaccine mandate. The Eleventh Circuit ruled, however, the lower court’s nationwide application of the injunction was overly broad. Thus, the injunction issued in Georgia, et al. v. Biden, et al. litigation, Case No. 1:21-cv-163 (S.D. Ga. January 21, 2022), now applies only to the seven states and the members of the Associated Builders and Contractors which sued as plaintiffs.
As readers may recall, the lower court’s December 7, 2021 Order, held that the President had exceeded the authority Congress had delegated to him in the Federal Property and Administrative Services Act (known colloquially as the “Federal Procurement Act”). Specifically, the Court held that the vaccine mandate did not appear reasonably related to promoting “economy and efficiency” in federal contracting.
In its ruling on Friday, the Eleventh Circuit agreed with the lower court’s rationale in holding that the vaccine mandate as to employees of federal contractors/subcontractors was too broad and exceeded the President’s authority under the Federal Procurement Act. However, the Eleventh Circuit determined that the issuance of a nationwide injunction was also too broad. The Eleventh Circuit’s ruling specifically identified the practical issue arising out of the recent spate of opinions issuing extra-jurisdictional remedies that prompted its decision. Specifically, the appellate court noted that the “growing trend” of issuing nationwide injunctions against federal government action has encouraged plaintiffs to selectively choose where to file litigation to find the “friendliest forum” to obtain the most desired result. The Eleventh Circuit’s decision seeks to limit this type of forum shopping and noted that other procedural devices exist to protect the interests of nonparties. Furthermore, the plaintiffs’ stated interest to achieve national uniformity in arguing for a nationwide injunction was unpersuasive. “Nonuniformity is a deliberate feature of our federal court system,” the Court noted and further observed that it is vital for various courts to weigh in on issues related to regulatory challenge involving important and difficult questions of law.
While the nationwide injunction is now lifted, the Biden Administration has yet to announce whether it intends to begin enforcing its vaccination mandate in those states beyond the seven which sued as plaintiffs. It is also important to remember that other injunctions are still in place including one the Office of Management and Budget had ordered up nationwide across all federal Executive Branch agencies via a December 9, 2021 stay of the vaccination mandate pending the several appeals. As readers may recall, these other injunctions include the U.S. Court of Appeals for the Sixth Circuit (Cincinnati) affirming an injunction that precluded enforcement of the federal contractor/subcontractor vaccine mandate in Kentucky, Ohio, and Tennessee, which we discussed here. Additionally, the U.S. District Court for Arizona enjoined the federal contractor/subcontractor vaccine mandate in the state of Arizona on January 27, 2022, which we discussed here.
Monday, August 29, 2022: EEO-1 Requester For Federal Contractor EEO-1 Consolidated Component 1 Data Is Not Sure What To Do With The Data Since He Does Not Have It Yet, But He Generally Wants To Report On Federal Contractor Diversity
Will Evans, a Senior Reporter and Producer, of “Reveal” from” “The Center for Investigative Reporting” in Emeryville, California (on the East Shore of the San Francisco Bay, near Oakland) wants to see the data before his Center will know what it wants to do with them. But, in a blog Mr. Evans shared with us today, he writes:
“For years, Reveal from The Center for Investigative Reporting has battled in court to make public the diversity reports of companies that get government contracts, so that all journalists and the public can scrutinize the data.”
Mr. Evans and Reveal are also very obviously displeased that OFCCP has seemed to encourage federal Government contractors to resist disclosure and has given them 30 days to voice any objections they may have for disclosure.
Mr. Evans also clarified that his FOIA request does not seek EEO-1 data from employers which are not covered federal Government contractors and that he seeks only Component 1 race/ethnic and sex data, as OFCCP earlier so clarified. This is as it should be since employers which filed EEO-1 data with the EEOC, and which are not covered federal Government contractors otherwise required to file EE0-1 reports with OFCCP, should not have their EEO-1 reports disclosed to the public pursuant to Section 709(e) of Title VII.
The fact that Mr. Evans has limited his request to Component 1 (Type 2) CONSOLIDATED race/ethnic and sex data companies have filed with multi-employer establishments makes it very difficult for contractors to now resist OFCCP disclosure of their data, as a matter of law and fact.
First, OFCCP did have proper authorization from the Office of Management and Budget to seek and collect EEO-1 Component 1 data (although not Component 2 Pay and Hours Worked data).
Second, that means that Section 709(e) of Title VII does NOT attach to OFCCP’s FOIA requests since the data did not originate from the EEOC’s authority to obtain the data pursuant to Title VII.
Third, that means contractors must prove up an Exemption 4 (HR/business Trade Secrets) claim to OFCCP to force OFCCP to resist disclosing the data to Mr. Evans. That will be a fool’s errand for almost all federal contractors which submitted EEO-1 Component 1 Type 2 race/ethnic and sex data. This is because the consolidation of the data deprives virtually every contractor, if not all contractors, from proving that a competitor could “raid” the contractor’s highly placed minorities and women (a form of objection which has previously been successful against OFCCP when detailed Workforce Analyses (from Affirmative Action Plans for Minorities and Women) were proposed for disclosure). This also means that it will be very difficult, if not impossible, for accountants and Labor economists to use the EEO-1 Type 2 data to “reverse engineer” a contractor’s cost of doing business to allow the competitor to undercut the contractor’s federal contract bids in the future.
As I wrote in a Blog last week discussing a possible Component 2 Pay and Hours worked FOIA disclosure, Type 2 disclosures are almost impossible to defend against. No company has previously won such a case against OFCCP, although several of us have stopped AAP disclosures several decades ago.
Special Mea Culpa: I goofed last week and wrote about the objections federal contractors would have were the request for EEO-1 Component 2 Pay and Hours Worked data. The analyses and conclusions in that Blog are nonetheless solid and good, should the day ever come that an FOIA requestor seeks your EEO-1 Component 2 Pay Data. But, I answered a question not on the table, since Mr. Evans has clarified he restricted his request to ONLY EEO-1 Component 1 data. But save that Blog for when the day does come that someone requests the Component 2 Pay and Hours worked data in OFCCP’s possession. The Blog will come in very handy then. You just have the analyses earlier than the request.
Monday, August 22, 2022: EEOC Posted a Video of Its Buffalo Public Meeting/Listening Session
The U.S. Equal Employment Opportunity Commission posted a video of its “listening session” in Buffalo, NY on Aug. 22, 2022. The meeting, entitled “Advancing Racial and Economic Justice in the Workplace,” was the Commission’s first meeting held outside of Washington, D.C. since 2015. It was also covered in a local publication, The Buffalo News, here.
For more background on the meeting, see our previous story here.
Upcoming Date Reminders
Tuesday, September 6, 2022: USDOL ODEP’s national online public dialogue on “Advancing the National Apprenticeship System” closes.
Wednesday, September 7, 2022 (2:00 – 3:00 PM EDT): DirectEmployers webinar on “Interacting with Co-Workers with Disabilities and Avoiding Benevolent Ableism”
Tuesday, September 13, 2022 (1:00 – 2:30 PM EDT): EEOC and OFCCP Roundtable on Artificial Intelligence, “Decoded: Can Technology Advance Equitable Recruiting and Hiring?”
Thursday, September 15, 2022 (2:00 – 3:00 PM EDT): DirectEmployers webinar on “The Truth About 10 Common Background Check Mix-Ups”
Friday, September 30, 2022: 2022 VETS-4212 filing deadline. The reporting cycle began on August 1, 2022: https://www.dol.gov/agencies/vets/programs/vets4212
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.
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