OFCCP Week In Review: March 25, 2024

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 J. Chambers and Cynthia L. Hackerott. In today’s edition, they discuss:

• 2023 EEO-1 Component 1 Instruction Booklet Posted
• DE Masterclass Highlighted Value of Military Spouses for Employers & Ways Employers Can Attract & Retain Them
• US DOL Office of Disability Employment Policy Posted a New Resource Designed to Increase Competitive Integrated Employment
• OFCCP’s FY 2025 Congressional Budget Justification Identifies a Shift Toward a Greater Focus on Systemic Discrimination Investigations
• President Signed Budget Bill Funding US DOL/OFCCP, NLRB & Other Agencies Through End of FY 2024
• In Brief
• New Publications
• Looking Ahead: Upcoming Date Reminders

Wednesday, March 19, 2024: 2023 EEO-1 Component 1 Instruction Booklet Posted

Data File Upload Specifications Added on Friday

As promised, the U.S. Equal Employment Opportunity Commission (“EEOC”) posted the 2023 EEO-1 Component 1 Instruction Booklet (“Instruction Booklet”) on its EEO-1 data collection landing page. Two days later on Friday, the EEOC added the 2023 EEO-1 Component 1 Data File Upload Specifications.

In its announcement, the agency explained:

“The EEOC requires electronic submission of EEO-1 Component 1 report(s) through a web-based data collection application (i.e., portal) referred to as the EEO-1 Component 1 Online Filing System (OFS). Account holders must submit the employer’s workforce demographic data electronically in the web-based portal (i.e., OFS) through either (1) manual data entry or (2) data file upload.

The “manual data entry” option requires directly entering workforce demographic data into the OFS. Filers choosing the “data file upload” option should refer to the 2023 EEO-1 Component 1 Instruction Booklet prior to and in conjunction with using the 2023 EEO-1 Component 1 Data File Upload Specifications (i.e., “Data File Upload Specifications”). Filers must ensure they are complying with the EEOC’s substantive filing requirements detailed in the Instruction Booklet and should not refer solely to the “Data File Upload Specifications” to complete their required 2023 EEO-1 Component 1 filing.”

Earlier this month, we reported that the 2023 EEO-1 Component 1 data collection will open on April 30, 2024, and close on June 4, 2024. The EEOC’s EEO-1 Component 1 online Filer Support Message Center (i.e., filer help desk) will also be available on April 30 to assist filers with any questions they may have regarding the 2023 collection.

Thursday, March 21, 2024: DE Masterclass Highlighted Value of Military Spouses for Employers & Ways Employers Can Attract & Retain Them

“Military spouses, undoubtedly, are an untapped talent pool,” noted Alicia Wallace, the Associate Director – Affirmative Action and EEO Compliance at Eli Lilly & Company, during last Thursday’s DE Masterclass Employment Law Roundtable: Strategic Plans for Military Spouses. Alicia is also a US Army veteran and military spouse.

“Military spouses are resilient; they are transitional,” emphasized Denise Lewis, Director, DEIAB Outreach Programs & Initiatives at Vet Jobs & Military Spouse Jobs. Denise is also a military spouse. “They are willing to work harder than anybody else,” she added. As an example, she cited the experiences of military spouses abroad learning new languages and systems. Moreover, “the integrity of a military spouse is absolutely incredible,” she said.

No Legal Requirements for Private Sector Employers Related to Military Spouses

DE Executive Director Candee Chambers began the presentation by noting that there is no state or federal requirement applicable to the private sector to undertake outreach, recruitment, hiring, or any form of “affirmative action” for military spouses. Therefore, whatever a company does is purely voluntary. By the same token, employers can legally target the hiring of military spouses because non-military spouses are not a protected category of workers.

The Pros and Cons of Military Spouse Self-Identification

Military spouses may, with good reason, be hesitant to identify themselves as such because employers may avoid hiring or advancing them due to the fear that they will move to another geographic area within a few years, Candee noted. “You never know what attitude that hiring manager might have,” she said. It also may depend on whether the employer has the capacity to meet the legal requirements involved in employing workers at locations outside of the geographic areas in which the employer’s business operates, she added.

Similar to employee self-identification of a disability, a military spouse needs to have a work environment that is a “safe space” to self-identify, Alicia observed, adding that federal government employment is generally an example of a “safe space” for military spouses.

It also depends on the industry and whether the position can be done remotely, said Evie King, Board Member & President of InDependent who joined the DE Masterclass Roundtable from her current home near Stuttgart, Germany. In that case, self-identification “might be a strength,” she added. “If we educate people more around the strengths that military spouses bring, they’re going to want them to identify because they’re going to want to know that that person brings all of these amazing qualities to the job,” Evie, who is also a military spouse, continued.

Moreover, “the civilian world has kind of caught up to this [because] most people don’t stay in jobs longer than two or three years anyway,” Evie pointed out. Evie’s group InDependent is a wellness community built by military spouses for military spouses of all branches of the U.S. Armed Forces. As a non-profit company, InDependent makes wellness accessible and creates opportunities for all military spouses to connect for friendship, accountability, and inspiration, including employment opportunities.

What Should Employers Do?

A big “speed bump” for employers is knowing where they can find this valuable talent pool of military spouses, observed John Fox, President & Partner of Fox, Wang & Morgan P.C. John is the son of a military officer and military spouse and father of a current service member.

“When you are recruiting or you’re sending out a job advertisement, be inclusive” and explicitly state that you are looking for military spouses,” Denise advised.

“There’s an opportunity for employers to be very intentional about [getting military spouses to self-identify] and then doing the right thing,” pointed out Kim Lott, Community & State Outreach Administrator at DirectEmployers Association. Kim is also a US Navy Veteran and military spouse. This community is limited in size and “very tight,” she observed. Accordingly, “they’re going to be able to spread that word about [which] employers [are and are not] doing the right thing” and about “the ones that are really doing that well,” she explained. “So, there’s a big opportunity there for employers.”

Military spouses, who can be male or female, “are really, really supportive of one another,” Alicia added. Consequently, if an employer is inclusive of one military spouse, they will probably get hundreds of other military spouses interested in employment with that employer “because they talk to each other.”

When an employer does “anything for Veterans Day, I strongly urge you to include your military spouses,” Candee said, because those spouses may be on their own due to their spouses’ current deployment.

Both Candee and Alicia cited the importance of a company’s culture, website content, and a company’s reputation “on the street” and what employees have to say about the extent of inclusiveness of military spouses.

Jobs for military spouses are important to military families because that second income is often vital to their economic security, the presenters all observed. Moreover, employment benefits that address military family-specific issues can help employers attract and retain military spouse employees.

“One of their core issues [of military spouses] has always been childcare, especially during deployment,” Denise noted. Therefore, employers should consider that in creating a culture of inclusiveness.

Where Can Employers Find Resources?

Denise noted that Military Spouse Jobs has an Employer Engagement Program. Currently, “we have over 344,000 vetted military spouses and veterans,” she reported. “We make it easy for you. You just tell us what you’re looking for and we align with your recruiters and with our recruiter connect specialist,” she explained. Plus, the service is at no cost.

John and Kim also noted DE’s Partner Relationship Manager (“PRM”), which helps to guide employers in their outreach efforts to organizations serving veterans, transitioning service members, and spouses.

As part of her role with InDependent, Evie works with the Department of Defense’s Military Spouse Education and Career Opportunities (“MYSECO”) program. “Anytime we have a job that [specifically targets military spouses] or we feel that it would fit the community,” we work with them to push it out on so many different platforms and it’s been really, really, helpful,” she reported.

Alicia also recommended employee resource groups (“ERGs”), noting that her employer’s veterans ERG grew “like crazy” once it included military spouses.

Some companies “are very creative” and offer benefits that address all kinds of military spouse life events and connect military spouse employees to consultants and other resources via their ERGs, Kim reported.

Links to Additional Resources

At the outset of the presentation, Candee shared the following recent DE/federal government publications regarding hiring military spouses:

• February 28, 2024, DE Podcast: DE Talk | Skilled, Vetted & Ready: DEIA at the Heart of Veteran & Military Spouse Hiring
• February 27, 2024, DE WIR: U.S. OPM & OMB Jointly Published First Ever Strategic Plan on Hiring Military Spouses
• February 8, 2024: DE WIR: U.S. GAO Report on Military Spouse Employment Focused on Challenges of Part-Time Work
• June 9, 2023, Executive Order 14100 on Advancing Economic Security for Military and Veteran Spouses, Military Caregivers, and Survivors

In the webinar chat, presenters and attendees also shared the following resources for employers:

• U.S. Defense Department Military Spouse Career Accelerator Pilot Program
• 2024 Military Friendly Employers list by Military Friendly®
• U.S. Chamber of Commerce Foundation’s Hiring Our Heroes Military Spouse Fellowships
• Blue Star Families’ Annual Military Family Lifestyle Survey 
• Military Spouse JD Network (for military spouses in the legal profession)

Missed the live conversation? Watch the recording to dive in deeper to the conversation had between these incredible mililtary spouses and allies.

Thursday, March 21, 2024: US DOL Office of Disability Employment Policy Posted a New Resource Designed to Increase Competitive Integrated Employment

Move Continues US DOL Push to Move Away from Sheltered Workshops Model

A new U.S. Department of Labor Competitive Integrated Employment Transformation Hub is designed to boost the participation of people with disabilities in competitive integrated employment (“CIE”). “Employers need support regarding accommodations and inclusive policies and practices,” said Assistant Secretary for Disability Employment Policy Taryn M. Williams in a corresponding announcement from the Labor Department’s Office of Disability Employment Policy (“ODEP”). The announcement noted that the hub brings together resources from across the federal government to provide practical guidance, policy information, and evidence-based best practices.

What is CIE?

The Workforce Innovation and Opportunity Act (“WIOA”) defines CIE as work that is performed on a full-time or part-time basis for which an individual is:

• Compensated at or above minimum wage and comparable to the customary rate paid by the employer to employees without disabilities performing similar duties and with similar training and experience;
• Receiving the same level of benefits provided to other employees without disabilities in similar positions;
• At a location where the employee interacts with other individuals without disabilities; and
• Presented opportunities for advancement similar to other employees without disabilities in similar positions.

How We Got Here

The US DOL’s move to push CIE is a move away from “sheltered workshops,” which provide workers with disabilities noncompetitive employment opportunities in a controlled working environment designed to prepare them for work in the general economy.

Under Section 14(c) of the Fair Labor Standards Act, employers may apply for special certificates from the USDOL’s Wage and Hour Division to pay individuals with disabilities less than the federal minimum wage. There is no minimum floor for the hourly wage that an employer may pay an individual with a disability under these certificates. The majority of workers with disabilities paid at this subminimum wage rate work at sheltered workshops.

In April 2023, Assistant Secretary Williams told the audience at DEAMcon23 meeting in Chicago that ODEP is “very much focused on advancing competitive integrated employment.” She continued:

“This is an issue where the President has been clear and very explicit that he wants to phase out [the] subminimum wage. We work very closely with our colleagues within the Department of Labor and our Wage and Hour Division but also with national and local providers all across the country to ensure that we’re providing support to help individuals transition from subminimum wage into competitive integrated employment.”

For more background on the Section 14(c) program, see our previous stories here, here, here, and here.

Friday, March 22, 2024: OFCCP’s FY 2025 Congressional Budget Justification Identifies a Shift Toward a Greater Focus on Systemic Discrimination Investigations

Shift a Bit Unclear: OFCCP’s Performance Numbers Do Not Match its Website Reports

OFCCP Also Reports Exceptionally Long Audit Processing Timeframes

OFCCP’s 28-page OFCCP full fiscal year (“FY”) 2025 Congressional Budget Justification (“CBJ”) provided insights into the agency’s plans, priorities, and enforcement strategies for the upcoming Fiscal Year (starting October 1, 2024) as well as past performance measures.

We reported last week that OFCCP’s FY 2025 request is $116,132,000 and 492 full-time equivalent employees (“FTEs). Its FY 2024 allocation was $110,976,000. Thus, the agency is seeking a 4.65% increase. OFCCP did not request an increase in FTEs. The requested $5.156 million increase over the FY 2024 allocation is “for inflationary costs,” OFCCP explained (on page 11). In essence, OFCCP requested a flatline budget accounting for inflation.

Should you wish to compare, our story on OFCCP’s FY 2024 CBJ is here.

The two biggest problems, of course, for OFCCP’s proposed/hoped for 4.65% budget increase are that:

1. it is not in line with the President’s overall Non-Defense Discretionary Budget proposing only a 1% increase in federal agency spending. This limit is driven by Congress’ debt-ceiling relief agreement codified as the “Fiscal Responsibility Act of 2023.” That Act allows for a spending increase of only 1% in FY 2025 compared to FY 2024. Of course, the President released his FY 2025 budget BEFORE the FY 2024 budget was finalized and set the NDD equal to the FY 2023 budget (“flat-lined” the FY 2024 budget); and
2. regardless of how modest the President’s NDD budget proposal for FY 2025 is for the federal agencies relative to past extravagances, there is NO ONE in Washington D.C., let alone in Congress, who thinks even that budget has a snowball’s chance in a Dallas summer of not melting to new much lower numbers. (And, that is in this A primary calculus for both Democrats and Republicans will be whether to stall the FY 2025 budget to after January 2025 when a new Congress will take its seat and President Biden will either be re-elected, or not. One can imagine what the federal budget will look like depending on the scenario you envision post-November 5, 2024.)

Two-year funding request (page 2). As it did last year, OFCCP requested two-year funding availability. Once again, the agency explained that the “annual uncertainty in the appropriations timing results in delayed hiring and rushed execution of contracts.” Whereas “multi-year availability would reduce the impact of short-term continuing resolutions at no cost to the annual appropriations bill.”

Key priorities (page 11): “In FY 2025, OFCCP will focus on industries that are vital to the economy and will benefit from new federal investments, including construction, manufacturing, and technology, as well as low-wage industries that employ the most marginalized workers. OFCCP will also focus on reaching workers from underrepresented communities to connect them to good jobs with federal contractors.”

To that end, OFCCP identified three key priorities: (1) remove hiring barriers to enable workers across all communities to contribute to federal contracts across industries; (2) strengthen its technological capacity and expertise; and (3) develop robust collaborations with organizations serving workers and contractors to ensure that workers know their rights and report workplace concerns and that contractors have the tools they need to understand and faithfully meet their equal employment opportunity obligations.

Staffing report (pages 13, 16 & 23): “After reaching the agency’s lowest level of staffing in decades, OFCCP actively worked to hire and onboard over 75 new employees in FY 2023, including nearly 50 field hires, bringing the agency’s onboard staff total to 513,” the agency reported. The requested funding level “will allow OFCCP to prioritize maintaining 492 FTE by backfilling vacancies as they occur, while accounting for inflationary costs.”

Editor’s Note: OFCCP had hoped for and anticipated a much bigger budget for OFCCP for FY 2024 before federal budget sobriety suddenly gripped the Biden White House in recent weeks as to both FY 2024 and FY 2025 budgets. This sobriety followed a continued Congressional revolt against big federal budgets for Non-Defense Discretionary (“NDD”) Spending as Congress, for a second year in a row, “put its foot down” and refused to increase (“i.e. flat-lined”) NDD spending, as we reported last week. OFCCP now finds itself “over hired” in this Fiscal Year 2024 (ending September 30, 2024).  The agency will likely NOT conduct a Reduction in Force to reduce employee headcount by the 21 FTE the agency needs to shrink its employee workforce down to reach the 492-employee headcount level Congress has authorized for the current Fiscal Year 2024. Rather, because of high employee turnover which continues to plague OFCCP and many expected retirements in the coming six months until September 30, 2024, OFCCP will confidently rely on that continuing employee attrition to naturally correct its current overstaffing of the agency.  [In fact, it is more likely than not that OFCCP will have to continue to hire new employees in the next 6 months to sustain its 492-employee workforce level as attrition will likely outpace its needed 21 head count diet. TBD.]

OFCCP also reported to Congress that it had launched an internal mentorship program and developed a succession plan to assist OFCCP’s hiring, retention, and training needs. Moreover, the agency reported increased investments in internal training programs to hopefully help ensure its employees were well-equipped to investigate discrimination cases and complaints. This training “focused on strengthening compliance officers’ skills in developing anecdotal evidence; recognizing and addressing issues of intimidation, retaliation, or other interference; interviewing techniques; and use of statistical tools to build cases.” In addition, OFCCP noted it had “completed the development of new courses that support its curriculum for new compliance officer training, and developed topical training courses that implemented new policy, programmatic and regulatory initiatives.”

Editor’s Note: We have heard many reports from OFCCP Compliance Officers, however, that they were not impressed by the new training courses and did not feel sufficiently well prepared to conduct Compliance Evaluations, especially in construction audits. DE has counseled Member companies to be patient and teach OFCCP Compliance Officers during audits about their industry and how hiring, promotion and compensation systems operate within their companies.

FY 2025 enforcement focus (pages 15-16): OFCCP states it will use this requested allocation to build on its Mega Construction Project Program and focus on the development of strong systemic cases, with an emphasis on hiring and a strategic approach to pursuing compensation indicators.

Editor’s Note: OFCCP obviously wrote this passage into its CBJ anticipating increased annual budget funding to expand existing programs BEFORE the White House “stepped on the budget brakes” and cut out entirely new program and employee expansion at OFCCP. Rather, the current White House budget proposal for OFCCP hopes for a future budget compromise with Congress which would allow OFCCP to cover at least its cost of inflation (so that reduction of agency programs and employee headcounts would not shrink during the coming FY 2025 from existing FY 2024 levels).

As to systemic cases, OFCCP stated:

“Through the active management of its compliance reviews, the agency will continue to improve its tools and techniques to prioritize those matters with the strongest evidence of systemic discrimination and the greatest potential to help workers. This will include periodic assessment of the agency’s triaging techniques relative to agency metrics, and the adjustments to thresholds and parameters applied by field staff to meet enforcement priorities in FY 2025. [Editor’s Note: We have no idea what that sentence means]. OFCCP will utilize new information and data submitted by contractors under review to streamline and improve its analysis of contractor employment and compensation data. [Editor’s Note: This is a very odd sentence in that it suggests OFCCP has not been able to create complete or proper employment data analyses to analyze contractor employment transaction data despite 50 years of experience reviewing contractor data]. Data scientists will assist field staff with structuring and analyzing data during the desk audit to identify patterns worthy of further investigation, including evidence of use of artificial intelligence or other technology in employment decisions. They will also collaborate with other OFCCP social scientists to develop and sophisticate the desk audit and triage tools used by the staff in the field.

OFCCP seeks appropriate relief for workers impacted by discriminatory practices. To this end the agency will continue to sophisticate its analytical assessments of contractor employment data. The agency will also foster its collaboration with the Department of Justice, to identify cases for potential litigation where informal efforts to conciliate violations prove ineffective. Additionally, OFCCP will enforce its right to access information relevant to determining compliance with the non-discrimination provisions of the Executive Order, VEVRAA, and Section 503.”

OFCCP also wrote in its CBJ that it will enhance its construction enforcement program, including implementing updated data collections, such as the revised construction scheduling letter (see our stories here and here). “The data collection will strengthen OFCCP’s construction program by clarifying what type of payroll data should be submitted by contractors and in what format for OFCCP to make the most efficient and effective assessment of the neutrality of employment decisions,” the agency claimed.

[Editor’s Note: This is an interesting mind slip revealing both a fundamental misunderstanding of discrimination law and that OFCCP hopes to mold federal contractor employment systems in the image of the employment systems the federal agencies employ. Of course, no private employer renders its employment systems “neutral” (to pay male and female, or black and white, etc., employees neutrally…i.e., exactly the same, or to hire “neutrally”:  in equal percentages by Protected Group).

Rather, private employers discriminate lawfully as to virtually every employment transaction to determine who is the better qualified candidate, or who is more experienced, or who has more relevant knowledge, skills and abilities in hiring, promotion and compensation decision-making. Employment decisions are very rarely “neutral”; they are almost always discriminatory except in the very rare circumstance in which the employer uncritically hires, promotes, or increases the pay of the candidate in question [as the federal government does as to promotions (now 99% automatic between steps within the 15 civilian General Schedule (“GS”) grades) and the pay resulting from any step advancement (100% neutral/identical): the only question of legitimate interest to OFCCP in audits is not whether the federal contractor’s employment decision making is “neutral,” but rather whether the discrimination OFCCP will find is lawful or unlawful: i.e., did the employer really hire/promote/pay differentially the better qualified candidate?]

Building OFCCP’s enforcement capacity to adapt to the evolution of work (page 18):

In FY 2024, OFCCP reported that it had “operationalized” the Branch of Validation and Analytics (“BVA”) within its Division of Enforcement. OFCCP further elaborated that it:

“developed its specialized expertise, including the training and deployment of recently hired data scientists and labor economists. These new hires enabled OFCCP to expand its data analytics and technological capacity to promote effective compliance reviews of evolving employer systems, provide employers with resources for proactive prevention, and develop more advanced predictive modeling for use in operations or scheduling. For example, BVA built tools that identify potential disparities in promotions, as well as a web-based construction compensation tool. BVA also assisted field offices with complex data manipulation tasks, analyzing employment screens and test, including AI systems, and other important data and analytical services.”

OFCCP also reported that it had strengthened its workforce to enhance enforcement and adapt to the evolution of work. To address the increasing number of employers which use some form of automated tool as part of their hiring process, including those that rely on AI or algorithms to screen and sort workers, OFCCP released guidance and promising practices to help stakeholders navigate potential issues and challenges stemming from use of AI in employment decision-making. OFCCP continued to align its processes and procedures related to AI with those of other federal agencies for consistency across the government.

“In FY 2024, new data collections in supply and service and construction improved OFCCP’s ability to detect systemic discrimination by broadening reviews of campus-like settings, analyzing additional years of data, and coordinating compliance reviews across multiple establishments. OFCCP also invested in robust training for its compliance officers and managers. This included training on human resource information systems (HRIS) and automated hiring tools to strengthen the agency’s ability to analyze data efficiently and evaluate these systems during compliance reviews to prioritize cases. Additionally, the agency provided training for staff on approaches to identify hiring barriers that rely on criteria that is (sic) not job related and evaluate a pattern or practice of discrimination in similar jobs across establishments.”

Technology modernization (pages 19 & 21): OFCCP technology modernization efforts in FY 2024, included continuing to enhance current IT Systems capabilities to automate and streamline manual processes and allow for an increase in responsiveness, resolution, and reporting. This included completing new modules and enhancements in OFCCP’s Compliance Management System (“CMS”). The agency reported that it completed and deployed modules for processing complaint investigations and megaprojects. OFCCP also continued to make enhancements to its Contractor Portal designed to improve functionalities for contractors such as deploying the AAP Submission feature where scheduled contractors may submit AAPs through the Contractor Portal.

OFCCP’s contradictory FY 2023 enforcement statistics (page 26): OFCCP has now updated its website-based Supply and Service Compliance Evaluations Conducted {“SSCEC”) and Monetary Relief Obtained (“MRO”) reports (a frequently changing report due to continuing late updates). If this publicly reported OFCCP report is to be believed, the latest data show a shift in OFCCP’s enforcement emphasis towards more unlawful discrimination claims, including 45 discrimination violation settlements (Conciliation Agreements, or “CAs”) valued at $17,309,819 of which 9 resolved alleged compensation discrimination claims.

However, OFCCP reported in its just released Congressional Budget Justification (“CBJ”) for FY 2025’s budget that in FY 2023 (which ended September 30, 2023 and which is the latest year for which full-year data are available), that OFCCP completed 854 compliance evaluations and processed 26 complaint investigations, resulting in 151 conciliation agreements settled, including 17 discrimination cases totaling $6.5 million in monetary recoveries for 1,845 victims of discrimination and 260 negotiated job opportunities. The agency recovered an additional $7.25 million in salary adjustments for 781 affected class members, bringing the total FY 2023 monetary recoveries to $13.7 million for 2,626 victims of discrimination.

OFCCP’s CBJ numbers:

1. Overstates OFCCP’s total CAs by 29 [151(CBJ) vs 122 (OFCCP’s website based SSCEC report)]; and
2. Confirms OFCCP’s SSCEC report of 26 (total) discrimination CAs; and
3. Understates OFCCP’s backpay collection by a little under $4 million [$7M (CBJ) vs $17,309,819 (SSCEC)]; and
4. Understates the number of alleged third-party beneficiaries of OFCCP’s discrimination CAs by a factor of over 3x [4,471 alleged “victims” of unlawful discrimination [CBJ) vs 13,861 alleged “victims” of unlawful discrimination (OFCCP’s website-based MRO report)].

Editor’s Note: It is not possible to report a necessarily correct year-over-year comparison of OFCCP’s enforcement data since it is unclear which of the three competing OFCCP reports are correct, or whether any of them are correct. However, assuming OFCCP’s website-based reports are correct (generally reporting larger numbers than OFCCP’s budget report/request (CBJ) to Congress, OFCCP’s updated SSCEC reports that OFCCP REDUCED by 13 (from 90 to 77=14.5% drop) the number of CAs the agency signed citing only Affirmative Action “paperwork” violations and NOT discrimination law violations. (NOTE: 116 reported total CAs in FY 2022, of which 26 were discrimination CAs=90 CAs citing only Affirmative Action violations; and 122 total CAs in FY 2023, of which 45 were discrimination CAs =77 CAs citing only Affirmative Action violations).

OFCCP’s CBJ also reported to Congress these performance highlights:

• completing desk audits, on average, within 40 days;
• processing 94 percent of complaints within the standard timeframe, and
• exceeding the target number of stakeholder events, including those focused on workers’ rights.

The agency reported that it “processed Supply and Service (“S&S”) compliance evaluations with discrimination violations within 1,255 median days (almost 3½ years: REALLY!?), just shy of the FY 2023 target of 1,200 (REALLY!?) median days. [Editor’s Note: If that is the median running time on discrimination audits, one wonders what the running time of the outliers looks like?]

Excuse Factory: Additionally, OFCCP admitted that it fell significantly below its 250 target on the timeliness measure for median days to process Supply and Service compliance evaluations without discrimination violations, at 369 days. The agency explained that this was “due to several factors including inadequate staffing levels [Editor’s Note: However, OFCCP also reported it was overstaffed by 21 FTEs], the addition of significant new staff, a focus on onboarding and training those new staff, the learning curves associated with reimplementation of construction reviews, implementation of the Megaproject program, increased outreach goals, and contractor delays in providing requested information.”

OFCCP failed to note, however, why it had failed to see any of these changes coming since it forewarned in its CBJs for FY 2022 and FY 2023 that the agency was enacting these changes to its enforcement programs.

“As new staff grow in their positions and newly introduced triaging principles are fully implemented, OFCCP expects processing times to return to the 250- day goal during FY 2024,” the agency reported. This explanation of OFCCP’s sluggish performance results appears to be another reminder of management 101 that high employee turnover is rarely a desirable state of affairs.

Saturday, March 23, 2024: President Signed Budget Bill Funding US DOL/OFCCP, NLRB & Other Agencies Through End of FY 2024

Bill Covering Other Half of Funding – Including EEOC – Became Law Earlier This Month

Almost All Agencies Got Flatline Funding

Saturday afternoon, President Biden signed a $1.2 Trillion, partial budget package – H.R. 2882 – funding specified government agencies, including the U.S. Department of Labor (“DOL”), through the end of Fiscal Year (“FY”) 2024 (i.e., September 30, 2024). This is FY 2024 funding for the Fiscal Year in progress since October 1, 2023 (and ending on September 30, 2024). This story is NOT about the FY 2025 funding for the next federal Fiscal Year starting October 1, 2024 (and ending on September 30, 2025).

Earlier on Saturday, the Senate passed the legislation, 74-24; the House of Representatives passed the measure on Friday by a 286-134 vote. H.R. 2882, entitled the “Further Consolidated Appropriations Act, 2024,” contains the six appropriations bills remaining after H.R. 4366 became law earlier this month (see our story here). All 12 “Discretionary Budget Bills” the Congress has now passed and the 12 “discretionary” federal agency spending bills it debates each year to fund the federal agencies have now been signed into law by President Biden.

Almost all the agencies that we include in our detailed discussion below did not receive any increase in budget compared to FY 2023. The exceptions were the DOL’s Employment and Training Administration and the DOL IT Modernization project, which both suffered a decrease.

Although FY 2024 began on October 1, 2023, Congress “kicked the finalized funding can down the road” multiple times with a series of four Continuing Resolutions (“CRs”). See our story here for details on these CRs. The two spending bills signed into law this month – H.R. 4366 and H.R. 2882 – contain the finalized appropriations for FY 2024, which ends on September 30, 2024.

Also, last week, we reported the details of President Biden’s Budget Proposal for FY 2025 (beginning October 1, 2024 when the spending bills for FY 2024 (which President Biden just signed) terminate).

If you want to compare President Biden’s budgets request for this year’s now enacted budget for FY 2024, our story describing it is here.

For further comparison, our detailed story on the finalized FY 2023 budget (last Fiscal Year) is here.

Division D, Title I of H.R. 2882 lists the appropriations for the U.S. Departments of Labor (“DOL”) and its subagencies. Division D, Title IV, contains the allocation for the National Labor Relations Board (“NLRB”). The budget bill passed earlier this month, H.R. 4366, contains the allocation for the Equal Employment Opportunity Commission (“EEOC”) at Division C, Title IV.

Specific Allocations

The list below details the finalized numbers allocated for FY 2024, the respective Congressional Budget Justifications (“CBJs”), and the FY 2023 finalized amounts. Links for each respective CBJ are embedded. The percentage increase numbers are rounded up or down to the nearest two decimal points. “FTEs” stands for “full-time equivalent employees.” The page numbers cited below are to the applicable pdf versions of H.R. 2882 and H.R. 4366.

OFCCP: FY 2024 allocation is $110,976,000; zero increase from FY 2023

The OFCCP’s FY 2024 budget allocation is $110,976,000 (p. 428 of H.R. 2882), which is exactly the same as the FY 2023 (492 FTEs).

The agency’s FY 2024 CBJ requested a highly unrealistic $151,462,000 (620 FTEs). Thus, OFCCP received a 26.73 percent decrease compared to its request. OFCCP clearly was hoping they would receive close to their requested amount even though Congress has, for the past two years, been focusing on “smaller budgets” as a better direction of Congress.

EEOC: FY 2024 allocation is $455,000,000; zero increase from FY 2023

For the Equal Employment Opportunity Commission (“EEOC”), the budget allocation is $455,000,000 (p. 140 of H.R. 4366), which is exactly the same as FY 2023.

In its FY 2024 CBJ, EEOC requested a highly unrealistic $481,000,000. Thus, Congress awarded the EEOC a 5.41 percent decrease compared to its request. The EEOC has also missed the Congressional budget direction over the last two years.

NLRB: FY 2024 allocation is $299,224,000; zero increase from FY 2023

The National Labor Relations Board’s (“NLRB”) allocation is $299,224,000 (p. 573 of H.R. 2882), which is exactly the same as its FY 2023 allocation.

The NLRB requested an unrealistic $376,000,000 for FY 2024. Thus, the NLRB received a 20.42 percent decrease compared to its request.

Other DOL Agencies

BLS: FY 2024 allocation is $629,952,000; zero increase from FY 2023

For the Bureau of Labor Statistics (“BLS”), the FY 2024 allocation is $629,952,000 (p. 437 of H.R. 2882), which is exactly the same as its FY 2023 allocation.

In its CBJ, the BLS requested $690,370,000. Thus, BLS received an 8.75 percent decrease compared to its request.

ETA: FY 2024 allocation is $4,006,421,000; a 3.25 percent decrease from FY 2023

The Employment Training Administration (“ETA”) allocation is $4,006,421,000 (p. 408 of H.R. 2882). Its FY 2023 allocation was $4,140,911,000. Thus, ETA received a 3.25 percent funding decrease compared to last year.

ETA’s FY 2024 CBJ request was $4,420,684,000. Thus, ETA got a 9.37 percent decrease compared to its request.

ODEP: FY 2024 allocation is $43,000,000; zero increase from FY 2023

For the Office of Disability Employment Policy (“ODEP”), the allocation is $43,000,000 (p. 438 of H.R. 2882), which is exactly the same as its FY 2023 allocation.

In its CBJ, ODEP requested an unrealistic $60,549,000. Thus, ODEP received a 28.98 percent decrease compared to its request.

OLMS: FY 2024 allocation is $48,515,000; zero increase from FY 2023

The Office of Labor-Management Standards (“OLMS” allocation is $48,515,000 (p. 428 of H.R. 2882), which is exactly the same as its FY 2023 allocation.

In its CBJ, OLMS requested $53,469,000. Thus, OLMS got a 9.27 percent decrease compared to its request.

OSHA: FY 2024 allocation is $632,309,000; zero increase from FY 2023

For the Occupational Safety and Health Administration (“OSHA”), the allocation is $632,309,000 (p. 433 of H.R. 2882), which is exactly the same as its FY 2023 allocation.

OSHA’s FY 2024 CBJ request was $738,668,000. Thus, OSHA received a 14.40 percent decrease compared to its request.

VETS: FY 2024 allocation is $335,341,000; zero increase from FY 2023

The Veterans Employment and Training Service (“VETS”) allocation is $335,341,000 (pages 440-442 of H.R. 2882), which is exactly the same as its FY 2023 allocation.

In its CBJ, VETS requested a reasonable (albeit unobtainable) $347,627,000 budget for FY 2024. Thus, VETS received only a 3.53 percent decrease compared to its request.

WHD: FY 2024 allocation is $260,000,000; zero increase from FY 2023

For the Wage and Hour Division (“WHD”), the allocation is $260,000,000 (p. 428 of H.R. 2882), which is exactly the same as its FY 2023 allocation.

WHD’s FY 2024 CBJ unrealistic budget request was $340,953,000. Thus, the WHD received a 23.74 decrease compared to its request.

IT Modernization: FY 2024 allocation is $29,269,000; a 14.59 percent decrease from FY 2023

The DOL budget contains a separate line item and justification section for “IT Modernization.” For FY 2024 the allocation is $29,269,000 (p. 443 of H.R. 2882). The FY 2023 allocation was $34,269,000. Thus, DOL got a 14.59 percent funding decrease for IT Modernization compared to last year.

The DOL had requested $79,193,000. Thus, DOL got a 63.04 percent decrease for IT Modernization compared to its request.

What Does it Mean for USDOL Subcomponent Agencies?

The practical effect is that with no budget increases, the USDOL subcomponent agencies comprising the USDOL will have to pay for the inflationary costs of doing business by either reducing headcount and/or program operations to save money at least equal to their increased operating costs.

Tilting at Windmills: “Flatline” budgets for FY 2024 were no surprise to the federal agencies since they were mandated by the June 2023 budget ceiling deal President Biden signed into law (codified as the “Fiscal Responsibility Act of 2023”). That Act both raised the nation’s debt ceiling level and fixed the discretionary spending budgets for FY 2024 and FY 2025 by limiting them with strict budget caps. Specifically, the Act limited Non-Defense Discretionary spending on the federal civilian agencies in FY 2024 to not more than 1% over the FY 2023 budget amount.

So, there were no surprises here, other than that USDOL erroneously thought Congress was still in a big spend and borrow mode when it’s subagencies prepared their Budget Justifications for their FY 2024 budgets several months before Congress in June 2023 “dropped the hammer” on increased federal agency budgets for FY 2024 and FY 2025.

Now that the 2023 Congressional “hammer” drop is a reality as it has finally arrived, we have already seen frantic efforts within USDOL agencies trying to now cope with their budget misjudgments. (OFCCP, for example, finding itself 21 employees over its FY 2024 FTE allowance, and numerous agencies suddenly cutting travel to save programs and heads).

This will be a difficult coming 18-months for the federal agencies through the time of the FY 2026 budgets as they now internalize what has happened and begin to shrink down their wardrobes to fit their new shrinking sizes. But instead of mass layoffs well-known to the private sector, this will be a slow “letting the air out of the tires” experience for the federal agencies. How each agency balances the retention of employees vs. the retention of program operations will be of keen interest to employers and federal contractors. Also, whether and how the federal agencies keep up the morale and training of their employees during down-budget cycles over the next (at least) 18 months will also be noteworthy.

Thursday, March 21, 2024: OFCCP Announced June 6th Webinar on Its Pre-Complaint Inquiry Process

On Thursday, June 6, 2024, from 11:00 – 11:45 AM CDT, OFCCP will host a webinar for federal contractors on its pre-complaint inquiry process for workers. We detailed this process in a story last November. Registration information is available here.

 

Thursday, March 21, 2024: Senate Confirmed Nomination of Rodriguez to Head US DOL ETA

After a few setbacks, the Senate confirmed, 50-48, the nomination of José Javier Rodríguez to head the U.S. Department of Labor’s Employment and Training Administration. Senators Shelley Moore Capito (R-WV) and Markwayne Mullin (R-OK) did not vote. All three of the Independent Senators – Angus King (ME), Bernie Sanders (VT), and Kyrsten Sinema (AZ) – voted in favor. Senator Joe Manchin (WV) was the sole Democrat who voted against the nomination.

We last reported on the status of this nomination in January, when we reported that Senate Majority Leader Schumer (D-NY) withdrew his latest motion to advance the nomination on the Senate floor because of “attendance issues.” In late 2023, we reported that the Senate voted 44-51 against advancing the nomination.

Nominee Rodriguez obviously successfully turned around the minds of 6 Democrats previously opposed to his nomination. Even had Republican Senators Capito and Markwayne attended the vote and cast “Nay” votes, the nomination would have then tied 50-50. Vice President Kamela Harris would have then cast the deciding “tie-breaker” vote “wearing her hat” as President of the U.S. Senate with the right to vote when Senators deadlock in a tie-vote.

President Biden sent this nomination to the Senate on January 23, 2023. On March 28, 2023, the Senate Committee on Health, Education, Labor, and Pensions Committee voted along party lines (11-10) to advance the nomination to the full United States Senate where it subsequently failed confirmation. The nomination then stalled in the Senate until Senator Schumer revived the nomination in December 2023 setting in motion a series of parliamentary procedures culminating in last week’s vote.

Monday, March 25, 2024: OFCCP’s AAP Certification Portal to Open April 1 with July 1 Deadline

On April 1, 2024, OFCCP will open its online Contractor Portal for federal contractors and subcontractors to certify that they have developed and maintained affirmative action programs (“AAPs”) for each establishment or functional unit, the agency announced. The certification deadline is July 1, 2024.

Note that on page 10 of the OFCCP Contractor Portal User Guide (last updated on September 19, 2023), OFCCP states that those of you without the new universal federal contractor identifier number known as the “Unique Entity ID” (“UEI”)  (which the federal government contracting agencies are now using to replace use of the formerly ubiquitous Dunn & Bradstreet number”)  may avoid it by adopting path 10 B) discussed below:

“10. You can (sic) take either of the following paths:

1. Identifiers Known Path: Provide all the following: (1) Employer Identification Number (EIN), (2) EEO-1 Headquarter/Company Number (6 to 15 characters), and (3) EEO-1 Establishment/Unit Number (6 to 15 characters). Providing all three identifiers may allow you to access information about your company. After entering this information, click “Continue.” If the system finds your information you will be directed to the “Edit Parent Company” page. If the system does not find your information, follow the instructions in step “b” immediately below.
2. Identifiers Not Found Path: If your Headquarter/Company Number and Establishment/Unit Number are not found in the system, click the checkbox “I want to register a company not found in the system.” and enter only your Employer Identification Number (EIN). Click “Continue.” You will be directed to the “Create Parent Company” page (see Figure 10).

After entering the required information, you will either be directed to verify and edit the information found for your company, or to enter your Parent Company information to create the Company Profile in the OFCCP Contractor Portal.

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.