OFCCP Week In Review: May 30, 2023

• Illinois Set to Become First U.S. State to Count Arab Americans When Collecting Public Data
• OMB Working Group Now Preparing Final Recommendations to Overhaul Federal Race & Ethnicity Data Collections
• Top 5 Actions to Take After Completing AAP Discussed in New DE Talk Minisode
• Percentage of Older Women in U.S. Workforce Nearly Doubled Since 1980, USDOL Reported
• USDOL WHD Announced First PUMP Act Enforcement Action
• In Brief
• Looking Ahead: Upcoming Date Reminders

Thursday, May 18, 2023: Illinois Set to Become First U.S. State to Count Arab Americans When Collecting Public Data

Federal Government Also Considering Adding This Reporting Category

The Illinois legislature passed a bill to amend the Illinois Data Governance and Organization to Support Equity and Racial Justice Act (“Data Governance Act”: 20 ILCS 65/20-15). The amendment requires Illinois state agencies to include a category for people who are Middle Eastern or North African (“MENA”) when compiling or reporting statistical data based on race and/or national origin. The day after the bill, HB 3768, passed both State Houses, Governor J.B. Pritzker tweeted: “My office made this change years ago and I look forward to signing this bill into law to ensure a more equitable Illinois.” As of our WIR deadline, Governor Pritzker had not yet acted on his clear intention to sign the measure. When the governor signs the bill, Illinois will become the first U.S. State to count Arab Americans when collecting public data.

What The Illinois Data Governance Act Currently Covers, Before Amendment: Once enacted, the legislation won’t take effect until July 2025. The Illinois Data Governance Act currently includes the following racial/national origin data collection classifications:

1. American Indian and Alaska Native alone;
2. Asian alone;
3. Black or African American alone;
4. Hispanic or Latino of any race;
5. Native Hawaiian and Other Pacific Islander alone;
6. White alone;
7. Some other race alone; and
8. Two or more races.

The various State agencies collecting the data are responsible to define each classification and must use the same racial and national origin categories for each state program. This leaves open the possibility that different Illinois state agencies could define persons of MENA national origin differently.

Federal Government Activity On The MENA Issue: As we report below in this week’s edition of the WIR, the Federal Interagency Technical Working Group on Race and Ethnicity Standards (“Working Group”) is preparing its final recommendations to revise the White House Office of Management and Budget’s (“OMB”) 1997 Statistical Policy Directive No. 15: Standards for Maintaining, Collecting, and Presenting Federal Data on Race and Ethnicity (SPD-15). Among the five changes the federal Working Group is considering is adding the MENA category as a new minimum reporting category distinct from all other reporting categories. Under the proposal, OMB would edit the definition of the current “White” reporting category to remove MENA persons. The Working Group developed a draft definition of a MENA minimum category to cover “all individuals who identify with one or more nationalities or ethnic groups with origins in the Middle East and North Africa. Examples include, but are not limited to, Lebanese, Iranian, Egyptian, Syrian, Moroccan, and Israeli.”

The Possibility That Different State And Federal Definitions of MENAs Will Proliferate Absent Careful Management Of That Issue: The action of Illinois to prospectively propose perhaps numerous different MENA definitions, including one or more that may differ from the apparently coming federal definition, points up the proliferating problem of differing state and federal employment standards covering the same rights and obligations various state and federal legislatures are now addressing without coordination or preemption. In light of Illinois’ action to require reporting of MENA classified persons, employers may wish to comment to the federal Interagency Taskforce on the desirability and/or need for consistent nationwide definitions of national origin to avoid undue cost burdens on employers to collect the variously required data. Moreover, a common definition would avoid otherwise inevitable untoward results in which an individual is a MENA for federal purposes but not for state law purposes, or vice-versa. Federal pre-emption or deferral of all state and federal regulatory bodies to Title VII’s definition of National Origin are both possible solutions, among others.

What DE Member Companies Think About the MENA Issue:  DirectEmployers surveyed its Members to prepare comments on the federal Taskforce’s initial proposals to amend SPD-15 and reported that 73% of its Members which participated in the Survey favored adoption of the MENA reporting classification. The 27% of Members who opposed the MENA reporting classification did so primarily for three reasons:

• A feared additional cost burden to prepare Affirmative Action Plans for Minorities and Women;
• The utility of this breakout definition was not clear to these DE Members since MENAs are otherwise already legally protected by National Origin discrimination prohibitions; and
• MENA members are not a distinct or homogenous group. DE Members noted that National Geographic and Wikipedia, among many other writings, report little commonality of peoples in North Africa, beginning with uncertainty as to what geography “North Africa” encompasses. Our Members also noted great variation in culture, religion, language, and a collage of many different races and ethnicities in North Africa…making the Working Group’s Proposal akin to stating that everybody in the Southeast United States should be defined as White.

Monday, May 22, 2023: OMB Working Group Now Preparing Final Recommendations to Overhaul Federal Race & Ethnicity Data Collections

Over 20k Comments Submitted on Initial Proposals

Working Group Will Continue Public Listening Sessions Through This Fall

Providing a new update, the Federal Interagency Technical Working Group on Race and Ethnicity Standards (“Working Group”) reported that it is preparing its final recommendations to revise the White House Office of Management and Budget’s (“OMB”) 1997 Statistical Policy Directive No. 15: Standards for Maintaining, Collecting, and Presenting Federal Data on Race and Ethnicity (“SPD 15”). OMB received over 20,000 public comments in response to the January 2023 Federal Register notice (“FRN”) of the Working Group’s five initial proposals to revise SPD 15, the update noted. The Working Group will “review, process, and take into consideration feedback from public engagements, comments on the FRN, and available research” to arrive at final recommendations to present to Dr. Karin Orvis, the Chief Statistician of the United States. OMB remains on track to meet its goal of completing the revision no later than Summer 2024.

In addition, the Working Group will continue to hold public listening sessions through this Fall, the update noted. The Working Group described the major themes of the comments heard during the first several months of these listening sessions on its webpage regarding “How to Get Involved.” Those wanting to schedule a listening session should send a brief email expressing interest to Statistical_Directives@omb.eop.gov.

How We Got Here

In June 2022, Dr. Orvis first announced plans to update SPD 15. That Directive created common definitions to allow the federal Government to compare race and ethnicity data across federal agencies. We discussed that announcement and SPD 15 in detail here. Federal contractors use SPD 15 to assign race and ethnicity codes to applicants and employees for use in Affirmative Action Plans, for example. Covered federal Government contractors employing 50 or more employees and employers subject to Title VII with 100 or more employees use the same SPD 15 definitions of race and ethnicity when filing annual EEO-1 Surveys with the Joint Reporting Committee of the OFCCP and the Equal Employment Opportunity Commission.

At the end of August 2022, we reported that the OMB Working Group announced the availability of virtual, bi-monthly, public listening sessions regarding its plans to update SPD 15.

In late January 2023, the Working Group released its five initial proposals on its website and in the FRN. In March, the Working Group held three Town Hall meetings to supplement the written public comments. The Working Group’s website has recordings of all three Town Halls available here. It also posted the slide deck for those meetings here. The public comment period on the FRN closed on April 27, 2023. The Working Group has not indicated whether it will host additional Town Halls, but, as noted above, it will continue to hold public listening sessions through this Fall.

Tuesday, May 23, 2023: Top 5 Actions to Take After Completing AAP Discussed in New DE Talk Minisode

What comes next after you file your annual Affirmative Action Plan? In this episode of the DE Talk podcast, experts from OutSolve provide practical guidance on the most important actions to take and the importance of compliance as a year-round focus, not just a one-time and done activity. Tune in as they share real-world, actionable advice related to adverse impact analysis, outreach strategies, organizational training, and much more! Click below to listen now!

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Wednesday, May 24, 2023: Percentage of Older Women in U.S. Workforce Nearly Doubled Since 1980, USDOL Reported

Older Women Now Account for 1-in-10 of U.S. Workers

Employers Should Audit Pay of Older Women Given DOL Focus on Pay Disparities

While women aged 55 and older made-up 10.8 percent of the U.S. labor force as of 2021 – nearly double their 5.8 percent share of the workforce in 1980 – their incomes continue to be lower and they are more likely to live in poverty than men of the same age, according to a new report by the U.S. Department of Labor’s (“DOL”) Women’s Bureau. The DOL Women’s Bureau held a roundtable discussion on the findings of this report, entitled the “Rise of Older Women Workers,” as well as another report, entitled “Living on Less: Persistent Gender Disparities in Income Levels, Sources for Older Adults.” The reports showed that, on average, the incomes of women 65 and older are only 63 percent of the incomes of men. Both reports also included graphics illustrating state-by-state data.

“The inequalities that women experience throughout their working lives – things like unequal pay, the lack of affordable childcare, or gender and racial discrimination and harassment – accumulate and grow over time,” DOL Women’s Bureau Director Wendy Chun-Hoon said in a press statement on the roundtable. “While some workers may choose to keep working, too many older women simply cannot afford to retire due to a lifetime of low wages, family caregiving responsibilities[,] and systemic inequalities,” she continued.

“Long-term solutions require addressing a lifetime of gender-based inequities, [including] eliminating pay disparities, increasing access to worker protections, creating pathways to better-paying careers, and improving job quality where women are the most likely to work today,” according to the DOL press release. Since the federal Government asserts that these disparities are due to pay inequities and other forms of discrimination, employers may wish to audit the pay and examine other Human Resources and benefits policies and practices impacting older female workers.

Thursday, May 25, 2023: USDOL WHD Announced First PUMP Act Enforcement Action

With All Remedy Provisions Now in Effect, Agency Jumped Right on Enforcement

In its first public announcement of an enforcement action under the “Providing Urgent Maternal Protections (PUMP) for Nursing Mothers Act” (“PUMP Act”), the U.S. Department of Labor’s Wage and Hour Division (“WHD”) concluded that a corporate-owned location of Whataburger Restaurant LLC failed to provide reasonable break time for an employee to express breast milk. Moreover, WHD investigators determined that, when the employee left the premises of the Lubbock, Texas restaurant to express milk, the employer terminated her. To resolve these allegations, the San Antonio-based franchisor signed an “Enhanced Compliance Agreement” stating it will provide FLSA training to all managers in the future. The employer also agreed to pay $900 in back wages and $900 in liquidated damages.

How Did We Get Here?

As we reported in early January, the PUMP Act amended the Fair Labor Standards Act (“FLSA”) to require employers to provide breastfeeding accommodations in the workplace. Specifically, it requires a private location other than a bathroom and the necessary, reasonable break time for one year following the birth of a child. It expands on a 2010 amendment to the FLSA, which requires employers to provide these accommodations to non-exempt nursing employees. The new law expanded these rights to salaried employees. The Act contains several exemptions, including those for employers with fewer than 50 employees if compliance would impose an undue hardship, and specific exemptions for crewmembers of air carriers, train crews of rail carriers, and certain motorcoach services. Most of the provisions of the PUMP Act took effect on its enactment date. However, certain remedy provisions did not take effect until April 27, 2023. Thus, the WHD wasted little time in jumping right on enforcement of this new statute.

We reported last week that the WHD recently issued a field guidance explaining the new employer obligations under the Act. In addition, WHD also has a PUMP Act landing webpage with an updated FLSA poster (April 2023), a “Fact Sheet,” FAQ, and other resources.

Note Related Law Taking Effect on June 27

Employers should note that the PUMP Act is not to be confused with the “Pregnant Workers Fairness Act” (“PWFA”). Although both statutes were enacted on December 29, 2022, as part of the bipartisan FY 2023 Budget legislation (H.R. 2617), the PWFA does not go into effect until June 27, 2023. Congress designated the U.S. Equal Employment Opportunity Commission (“EEOC”) as the enforcement agency for the PWFA. In April, EEOC Vice Chair Jocelyn Samuels and Commissioner Keith Sonderling told attendees at DEAMcon23 in Chicago that the Commission is currently working on proposed regulations to implement the PWFA.

The EEOC will start accepting charges under the PWFA on its effective date next month. For the PWFA to apply, the situation complained about in the charge must have happened on June 27, 2023, or later, the Commission states on its PWFA landing webpage. A pregnant worker who needs an accommodation before June 27th may, however, have a right to receive an accommodation under another federal or state law, the EEOC cautioned.

In Brief

Wednesday, May 24, 2023: USDOL Launched “Mental Health at Work” PSA Video

As part of its “Mental Health at Work” initiative, the U.S. Department of Labor (“DOL”) released a video public service announcement (PSA) to help advance mental health and wellness in the workforce. The video features Acting Secretary of Labor Julie A. Su, as well as employers, association leaders, and workers who have lived experiences related to mental health in the workplace. To coincide with President Biden’s designation of May 2023 as Mental Health Awareness Month, the DOL launched its “Mental Health at Work” initiative to offer resources for employers and workers to create supportive workplaces that prioritize mental health. On the day of its release, various Biden Administration officials highlighted the PSA as part of a White House roundtable on Mental Health at Work.

Looking Ahead:
Upcoming Date Reminders

December 2022: U.S. DOL WHD’s (now overdue) target date to publish a Notice of Proposed Rulemaking to Analyze Public Comments on its proposed rule regarding Nondisplacement of Qualified Workers Under Service Contracts (RIN: 1235-AA42)

December 2022: U.S. OSHA’s (now overdue) target date to publish its Final Rule on Occupational Exposure to COVID-19 in Healthcare Settings (RIN: 1218-AD36) (OSHA submitted this Final Rule to OMB on December 7, 2022)

December 2022: U.S. DOL’s OASAM’s (now overdue) target date to publish Proposed Rule on “Revision of the Regulations Implementing Section 188 of the Workforce Innovation and Opportunity Act (WIOA) to Clarify Nondiscrimination and Equal Opportunity Requirements and Obligations Related to Sex” (RIN: 1291-AA44)

February 2023: U.S. DOL WHD’s (now overdue) target date for its Final Rule on Updating the Davis-Bacon and Related Acts Regulations (RIN: 1235-AA40)

March 2023: OFCCP’s (now overdue) target date for its Notice of Proposed Rulemaking to Require Reporting of Subcontractors (RIN: 1250-AA15)

March 2023: OFCCP’s (now overdue) target date for its Final Rule on Pre-Enforcement Notice & Conciliation Procedures (RIN: 1250-AA14)

March 2023: OFCCP’s (now overdue) target date for its Final Rule on “Technical Amendments” to Update Jurisdictional Thresholds & Remove Gender Assumptive Pronouns (RIN: 1250-AA16)

April 2023: OFCCP’s (now overdue) target date for its Notice of Proposed Rulemaking to “Modernize” Supply & Service Contractor Regulations (RIN: 1250-AA13)

May 2023: U.S. DOL WHD’s target date for its Notice of Proposed Rulemaking on Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees (RIN: 1235-AA39)

May 2023: U.S. DOL WHD’s target date for its Final Rule on Employee or Independent Contractor Classification Under the Fair Labor Standards Act (RIN: 1235-AA43)

Tuesday, May 30, 2023: Public comment deadline on OFCCP’s proposal to modify its complaint intake procedures – https://www.regulations.gov/commenton/DOL_FRDOC_0001-2088

Thursday, June 1, 2023: Deadline to submit comments on U.S. EEOC’s proposal to eliminate counting employees to determine filing “type” for EEO-1 Survey Component 1 – https://www.regulations.gov/commenton/EEOC_FRDOC_0001-0310

Tuesday, June 6, 2023: Comments due on Proposed OMB Circular No. A-4, “Regulatory Analysis” – https://www.regulations.gov/commenton/OMB_FRDOC_0001-0337

Tuesday, June 6, 2023: Deadline for comments due on proposed revisions to OMB Circular A-94 (Guidelines and Discount Rates for Benefit-Cost Analysis of Federal Programs) – https://www.regulations.gov/commenton/OMB-2023-0011-0001

Tuesday, June 6, 2023: Comments due on OMB’s implementation of Section 2(e) of the “Modernizing Regulatory Review” E.O. – https://www.regulations.gov/commenton/OMB_FRDOC_0001-0333

Monday, June 12, 2023: Public comments due on the U.S. Office of Personnel Management’s Proposed Rule on “Advancing Pay Equity in Governmentwide Pay Systems” – https://www.regulations.gov/commenton/OPM_FRDOC_0001-2514

Monday, June 19-Thursday June 22, 2023: The Workforce Metrics Retreat in White Sulphur Springs, West Virginia: “This retreat will bring together equal employment opportunity/affirmative action (EEO/AA); diversity, equity, inclusion, belonging and access professionals (DEIBA+); subject matter experts  and corporate voices for candid conversations related to the seemingly endless resistance and rollback on several fronts related to AA and DEIAB+ initiatives.”

Thursday, June 29, 2023: Deadline for covered federal contractors and subcontractors to certify, via OFCCP’s online Contractor Portal, that they have developed and maintained affirmative action programs for each establishment or functional unit – https://www.dol.gov/newsroom/releases/ofccp/ofccp20230320

August 2023: U.S. NLRB’s target date for its Final Rule on Standard for Determining Joint-Employer Status (under the NLRA) (RIN: 3142-AA21)

August 2023: U.S. NLRB’s target date for its Final Election Protection Rule (RIN: 3142-AA22)

Friday, August 11, 2023: Deadline for Presenter Proposal Submissions for DEAMCon 2024 – https://deamcon.org/call-for-presenters/

Wednesday, April 3 – Friday, April 5, 2023: DEAMcon24 New Orleans 

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.