OFCCP Week In Review: June 10, 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:

• JOLTS Report – Job Openings Decreased by 296k in April, Rate Decreased to 4.8%
• Employers Who Missed June 4th Deadline Now Have Until July 9 to File EEO-1 Survey
• OFCCP Changes Up Many Important Technical Details of its Audit Selection Process in its First FY 2024 Corporate Scheduling Announcement List
• U.S. Economy Added 272k Jobs in May, Unemployment Rate Edged Up to 4.0%
• In Brief
• Looking Ahead: Upcoming Date Reminders

Tuesday, June 4, 2024: JOLTS Report – Job Openings Decreased by 296k in April, Rate Decreased to 4.8%

The number of job openings in April was 8,059,000 – a decrease of 296,000 from March’s adjusted figure of 8,355,000 – the U.S. Bureau of Labor Statistics (BLS) stated in its Job Openings and Labor Turnover Survey (JOLTS) Report for April 2024. [Remember, JOLTS reports a month late: April only now being reported in June].

The April job openings rate, at 4.8 percent, decreased from 5.0 percent in March. Job openings decreased in health care and social assistance (-204,000) and in state and local government education (-59,000) but increased in private educational services (+50,000).

Hires, Total Separations, Quits & Other Separations Up; Layoffs/Discharges Down; All Rates Unchanged

The number of hires in April was 5,640,000 compared to the adjusted 5,617,000 number for March (+23,000). The rate held steady at 3.6 percent.

Total separations were 5,372,000 for April, up from 5,330,000 for March (+42,000). The rate was unchanged at 3.4 percent.

Within separations, quits in April were 3,507,000, up from 3,409,000 in March (+98,000). The rate held steady at 2.2 percent.

Layoffs and discharges in April were 1,515,000, down from 1,601,000 in March (-86,000). The rate was unchanged at 1.0 percent.

The number of other separations was 349,000 in April, up from 320,000 in March (+29,000). The percentage rate held steady at 0.2.

BLS posted interactive graphs here.

Three-Month Comparison Chart of Job Openings

Our table below reports the number of available jobs (as taken from the revised JOLTS reports) from the last four months of available data.

*December Job Openings were 8,889,000

Note: BLS is scheduled to release the JOLTS Report for May 2024 on Tuesday, July 2, 2024.

Wednesday, June 5, 2024: Employers Who Missed June 4th Deadline Now Have Until July 9 to File EEO-1 Survey

The day after the original June 4 reporting deadline, the U.S. Equal Employment Opportunity Commission (“EEOC”) posted the following notice on the EEO-1 Survey website:

“The published deadline to submit and certify the 2023 EEO-1 Component 1 report was 11:00 pm ET (i.e., Eastern Time) on Tuesday, June 4, 2024. Employers that have not submitted and certified their mandatory 2023 EEO-1 Component 1 report by Tuesday, June 4, 2024, must submit and certify their report as soon as possible, and no later than 11:00 pm ET (i.e., Eastern Time) on Tuesday, July 9, 2024 (i.e., “Failure to File” deadline).

After the 11:00 pm ET deadline on Tuesday, July 9, 2024, the EEOC wrote:

“Failure to File” deadline passes, no additional 2023 EEO-1 Component 1 reports will be accepted, and eligible employers will be out of compliance with their mandatory 2023 EEO-1 Component 1 filing obligations.

If you have already submitted a request to the Filer Support Team and are awaiting a response, please be advised the Filer Support Team is in the process of addressing those requests. We ask that filers only contact the Filer Support Team once regarding the same issue.”

The EEOC opened its 2023 EEO-1 Survey Component 1 Data Collection on April 30, 2024. Last week, we reported that the agency announced lawsuits against 15 employers for alleged failure to file EEO-1 Component 1 Reports. NOTE: This was a rare event the EEOC staged to startle the thousands of employers that annually fail or refuse to file EEO-1 reports into doing so. The EEOC has no ability to exact financial fines or sanctions on scofflaw employers. However, the EEOC may obtain an injunction in federal District Court to compel compliance with the obligation of covered employers to file EEO-1 reports as the Commission seeks in its 15 highly publicized lawsuits.

Friday, June 7, 2024: OFCCP Changes Up Many Important Technical Details of its Audit Selection Process in its First FY 2024 Corporate Scheduling Announcement List

Most AAP Establishments with Fewer Than 500 Employees Passed Over

Audit Methodology Undercuts Need for Much of the Data Burden the OFCCP Contractor AAP Certifications Annually Cause: Three Days Left to Comment

NOTE: Those federal contractors subject to OFCCP’s jurisdiction need not read this story (as irrelevant to you) if your company:

• is signatory to a Functional Affirmative Action Plan with fewer than 300 employees, or
• has no AAP Establishment in the 50 United States with fewer than 500 employees.

OFCCP published its first Fiscal Year 2024 Corporate Scheduling Announcement List (“CSAL”) for Supply & Service (“S&S”) contractors on its Scheduling List Resources webpage. The list identifies 500 federal contractors now slated to undergo OFCCP Compliance Reviews across 462 corporations, the agency noted in its corresponding email announcement. In contrast to an OFCCP audit Scheduling Letter, the CSAL letter is a courtesy advance notification of a coming audit. OFCCP also made numerous conforming changes to its CSAL FAQs you may find here.

CONTRACTORS BEWARE: Contractors should prepare for the possible early arrival of the coming OFCCP audit Scheduling Letters announced in last week’s CSAL. OFCCP no longer delays audits for 45 days, as the agency did for years, after its publication of a new CSAL. While that lack of advance notice for those audits the agency schedules immediately on the heels of the publication of a new CSAL defeats the very purpose of the CSAL, it is nonetheless OFCCP’s current audit scheduling practice. At the same time, OFCCP’s publication of this particular CSAL is very late relative to the agency’s need for a continuous supply of audit targets for each of its remaining 31 District Offices. While some OFCCP District Offices have a backlog of work, many others are “running on fumes” and need more audit targets now. It is a difficult balancing act for OFCCP to operate 31 District Offices to run a race and reach a common finish line together following the publication of each CSAL. OFCCP is currently very short on audit targets from the last CSAL for Supply & Service Contractors, with fewer than 25% of contractors on the last CSAL remaining available for audit. OFCCP’s audit Scheduling Letter giving your company 30-days from receipt to respond with detailed corporate documents and information needed for OFCCP’s audit could be in the mail even today or already in your e-mail inbox. Be ready!

Latest Audit Selection Methodology Contained Multiple Refinements; List Includes Financial Institutions, Colleges/Universities, CMCE & FAAP Reviews

As it has done for various CSALs going back to November 2019, OFCCP published a corresponding methodology explaining how it developed this latest CSAL. This latest, two-page methodology notes that OFCCP created the pool of eligible contractors for the new list by first downloading federal contracts valued at $50,000 or more from the USAspending.gov database.

EDITORIAL NOTE:

First, notice that OFCCP is not using its Contractor Portal, as it has stated its…

Friday, June 7, 2024: U.S. Economy Added 272k Jobs in May, Unemployment Rate Edged Up to 4.0%

Numbers Explain Presidential Election Issue Pitting Claims of Strong Economy vs Criticisms of Rising Unemployment & Stubborn Inflation

EDITOR’s NOTE: We have long debated whether to continue to include this (monthly) story in our WIR reporting. We have kept it because, despite being tediously quantitative, it has a strong following among a significant enough group of readers to warrant the effort each month. However, this month’s story is one that everyone should read to understand what many political pundits on both sides of the aisle believe is THE political issue that will decide the Presidency in the November election. As Jim Carville, Bill Clinton’s political strategist famously said in framing Clinton’s successful campaign to come from behind and unseat incumbent George H. W. Bush in an upset of the 1992 Presidential election:” It’s about the economy, stupid.” Here we go:

Despite the Federal Reserve’s hope to restrain the U.S. economy through high-interest rates for borrowed federal money in the hopes of reducing still stubborn inflation, job growth in the U.S. economy, against all predictions, surged dramatically yet again in May.

Wall Street analysts were left stunned and embarrassed by their much more bearish and wildly erroneous job growth predictions of somewhere between 170,000 to 200,000. Hopes for a lowering of interest rates in calendar 2024 were reduced to the optimists predicting one rate reduction this calendar year (down from 6 the market predicted only five months ago), perhaps in December. Pessimists even feared a further Federal Reserve rate hike (not reduction) early in 2025 if the stubborn inflation rate does not start trending steadily down (meaning step-downs 6 months in a row) to 2% annualized. As of May 15, the inflation rate in the United States was 3.4%, equal to the 2023 annualized inflation rate.

Job growth increased in May with the economy adding a whopping 272,000 jobs. Even so, the unemployment rate nonetheless rose (to 4.0 percent from 3.9%) as both the short-term and long-term unemployment lists grew in May, the U.S. Bureau of Labor Statistics (”BLS”) stated in its May 2024 Employment Situation report. Those figures for April were 165,000 new jobs (adjusted) and 3.9 percent unemployment. The BLS noted that the 272k figure was higher than the average monthly gain of 232k over the prior 12 months signaling an economy in transition from old jobs to new jobs.

NOTE: Many in Silicon Valley are likening the emergence of artificial intelligence technology as akin in importance to the Industrial Revolution. Really! To many in Silicon Valley right now, it also feels eerily like late 1993 when the “Internet Bubble” silently began (people in the Valley could feel something was happening with more business inventions popping up daily beyond one’s ability to catalog them all, but they did not initially understand that a digitally-connected Internet world of communication and commerce was emerging). Only some of us at that time had something called e-mail…

Tuesday, June 4, 2024: House EWC Chair Sent Letter to EEOC Chair Requesting Public Comment Opportunity on Anticipated Joint EEOC/NLRB Memo

She never rests. House Education and the Workforce Committee Chair Virginia Foxx announced that she sent a letter to Equal Employment Opportunity Commission (“EEOC”) Chair Charlotte Burrows requesting that the EEOC provide a public comment opportunity before finalizing an anticipated joint memorandum with the National Labor Relations Board (“NLRB”). According to a Bloomberg report a few days earlier, the memo is “intended to help employers in situations where workers’ offensive language against others crossing the picket line raises harassment concerns, while also potentially qualifying as protected activity under federal labor law.” (See our reports regarding related NLRB decisions here and here.) The issue is whether a union supporter guilty of unlawful harassment violative of federal civil rights laws (perhaps by jeering at non-union employees based on their race, sex, color, religion, sexual orientation, gender identity, disability, pregnancy, or age, etc.) while walking a picket line can nonetheless claim that s/he was properly pursuing “concerted activity” to unionize that the National Labor Relations Act otherwise protects.

Also, Republican Commissioners Keith Sonderling and Andrea Lucas told Bloomberg that, on April 3^rd, they voted to “agenda” the joint memo until a public hearing can be held on the draft, although the EEOC’s three Democrats voted to finalize it. Further, Commissioner Lucas explained to Bloomberg that the Chair exclusively decides when public hearings are set for items that have been moved to agenda. A “source close to the [C]ommission,” told Bloomberg that “[i]f the EEOC publishes the memo for public comment, Lucas and Sonderling will consider withdrawing their request to agenda.”

Thursday, June 6, 2024: Regional Offices Not Consistently Complying with NLRB’s Mail Ballot Election Procedures, Inspector General Reported

In Fiscal Year 2022, National Labor Relations Board (“NLRB”) Regional Offices were not consistently complying with the agency’s mail ballot election procedures, according to a new Report from the NLRB’s Office of Inspector General (“OIG”). The NLRB OIG also determined that the delivery of ballots to the voters and the return of ballots to the Regions were external factors that may impede the mail ballot election process. In general, the OIG found a lack of appropriate internal controls for the mail ballot election process. The OIG recommended that the NLRB’s Division of Operations-Management establish a system of internal controls exclusive to the mail ballot process. This report could set off a series of legal challenges from both sides of the fight over union elections won and union elections lost. It adds more fuel to fires already lighting up emotional union election campaigns.

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.