OFCCP Week In Review: June 1, 2021

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 Jennifer Polcer. In today’s edition, they discuss:

• Honoring Older Americans Through Communities Of Strength
• Missing EEO Notice Will Now Cost An Organization $576
• Comment Now on EEOC Recordkeeping Regulations
• Getting The Gang Back Together At The USDOL
• EEOC Supports Jewish American Heritage Month Through New Resolution
• NLRB Closer To A Full And More Diverse Board
• EEOC Greenlights Employer Payments for DOCUMENTATION of COVID-19 Vaccinations!
• OFCCP Seeks Unprecedented 33% Budget Increase: Focus is on Rebuilding OFCCP; Not Audit Enforcement
• EEOC FY 2022 Budget Plan to Emphasize Three Policy Priorities
• OFCCP Event This Week

Monday, May 24, 2021: Honoring Older Americans Through Communities Of Strength

Every May, the Administration for Community Living leads our nation’s observance of Older Americans Month. The theme for 2021 is “Communities of Strength.” Equal Employment Opportunity Commissioner Charlotte Burrows released an email to the EEOC subscriber list recognizing its support of older Americans, specifically during the trying times of the pandemic.

“During the pandemic, Americans who have worked the longest for themselves, their families, and their country have suffered a partic­ularly vicious combination of health and economic COVID-related harms. Older Americans are more likely to suffer serious symptoms if they contract COVID-19, experience its effects longer, recover more slowly, and sadly, have been less likely to survive it. Individuals 65 and over have comprised more than 80% of all COVID-19 deaths. This time last year, more older Americans were hospitalized than those in younger age groups.”

Chairman Burrows went on to state that “the EEOC has an important role to play in ensuring older Americans have equal opportunities to work and combats age discrimination through robust education and outreach, as well as through aggressive enforcement of the Age Discrimination in Employment Act of 1967. During the last six years, the EEOC has garnered over $438 million for age discrimination victims in pre-litigation resolutions alone.”

Wednesday, May 26, 2021: Missing EEO Notice Will Now Cost An Organization $576

The Equal Employment Opportunity Commission (EEOC) published a Final Rule adjusting its financial penalty amount for notice-posting violations from $569 to $576, effective with the publication of the Final Rule on May 26, 2021.

WHAT? If you did not know there was a financial fine or penalty for failing to properly post notices the EEOC requires covered employers to post, please read 29 CFR 1601.30(a) (the Rule the EEOC has just amended).

WHY DID THIS HAPPEN? The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, which further amended the Federal Civil Penalties Inflation Adjustment Act of 1990, allows for the annual indexing of federal penalty amounts as a function of increases in the Consumer Price Index in America. The Final EEOC Rule has now adjusted upward the civil monetary penalty for violation of the notice-posting requirements the EEOC has set out in a Rule (29 CFR 1601.30(a)) implementing three statutes the EEOC enforces: Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, and the Genetic Information Non-Discrimination Act.

HOW DID THE EEOC GET TO THIS NEW NUMBER? The EEOC simply adjusted the value of its financial penalty for notice-posting violations (currently $569 per violation per 29 CFR 1601.30(a)) by indexing it to the annual increase in the consumer price index. Specifically, the EEOC simply compared the Consumer Price Index for all Urban Consumers (CPI-U) for October 2019 with the CPI-U for October 2020. That comparison resulted in an inflation adjustment factor of 1.01182.

• Step One: Multiply the inflation adjustment factor (1.01182) by the most recent civil penalty amount ($569) to calculate the inflation-adjusted penalty level ($575.72558).
• Step Two: Round this inflation-adjusted penalty to the nearest dollar ($576)

Here is what 29 CFR 1601.30 (a) requires in pertinent part:

“Every employer, employment agency, labor organization, and joint labor-management committee controlling an apprenticeship or other training program that has an obligation under Title VII, the ADA, or GINA shall post and keep posted in conspicuous places upon its premises notices in an accessible format, to be prepared or approved by the Commission, describing the applicable provisions of Title VII, the ADA, and GINA. Such notice must be posted in prominent and accessible places where notices to employees, applicants, and members are customarily maintained.”

Fun Fact: According to the EEOC’s above referenced Final Rule, the EEOC annually issues fewer than 60 posting notice violations.

Got Notices? Relax. You have this handled. If not, click on this: EEO Is the Law

Wednesday, May 26, 2021: Comment Now on EEOC Recordkeeping Regulations

The EEOC published a Notice with a Request for Comments from the public on its request for a three-year extension, without change, of the recordkeeping requirements its existing Rules require.

The EEOC’s at-issue record-keeping Rules, published at 29 CFR §1602, do not require covered employers to create any particular records. However, the Rules require employers and labor organizations to preserve any personnel and employment records they “make or keep” for one or two years, and possibly longer during the course of any discrimination investigations.

Submit comments on or before July 26, 2021.

Thursday, May 27, 2021: Getting The Gang Back Together At The USDOL

The Committee on Health, Education, Labor, and Pensions held hearings on the nominations of Rajesh Nayak for Assistant Secretary of Labor for Policy, Taryn Mackenzie Williams for Assistant Secretary of Labor for Disability Employment Policy, and Doug Parker for Assistant Secretary of Labor for Occupational Safety and Health. The Committee has yet to hold a vote on these nominees, or even announce a date to consider and vote whether to advance one or all of the nominees to the full Senate for a full Floor vote of all sitting Senators. (All three nominees are expected to be referred out of Committee and then confirmed by the full Senate in coming weeks).

As we previously reported (see below), all three of these nominees served in the USDOL during the Obama Administration.

The Road To The U.S. Department of Labor (USDOL)

• Taryn Williams (04/22/21): “Biden Taps Former Obama Official to Come Back to ODEP: Obama Reunion Continues at USDOL.”
• Rajesh Nayak (04/23/21): “Former Obama Official Tapped to Come Back to OASP“
• Doug Parker (04/09/21): “President Biden Announced Nominee To Head OSHA”

Thursday, May 27, 2021: EEOC Supports Jewish American Heritage Month Through New Resolution

The EEOC announced the unanimous approval of a resolution condemning the recent violence, harassment, and acts of bias against Jewish individuals in the United States, even though the Commission’s jurisdiction is limited to workplace employment discrimination. The resolution coincides with Jewish American Heritage Month. It reaffirms the Commission’s commitment to combat all forms of harassment and discrimination in the workplace against members of the Jewish community, based on their religion, and to ensure equal opportunity, inclusion, and dignity for all in the workplace. In the announcement, Chair Burrows expressed her concern,

“Hatred, bigotry, and antisemitism violate our nation’s core principles and impact all of us. The recent violence and harassment against Jewish persons serve as a reminder of the challenges we face as a nation and the importance of the agency’s work. The Commission stands with the victims, their families, and the nation’s Jewish communities.”

Thursday, May 27, 2021: NLRB Closer To A Full And More Diverse Board

President Biden announced the nomination of Gwynne A. Wilcox, to be the final Member of the National Labor Relations Board (NLRB) to fil a seat reserved for a Democrat and previously vacated during the Trump administration by Democrat Mark Gaston Pearce.

Ms. Wilcox is currently a Senior Partner at the union-side Labor & Employment firm of Levy Ratner in New York. Her bio states that she “has devoted her career to representing unions and their members in negotiations, arbitration and before the National Labor Relations Board and other administrative agencies. She advises and strategizes with unions in the areas of collective bargaining, grievance handling, arbitrations, mediation, internal union administrative, and constitutional issues. She oversees union litigation and arbitration dockets, providing advice and counsel concerning the effective management of union resources in lawsuits and in arbitration. She also provides sexual harassment training to unions and non‑profits.”

If confirmed by the Senate, Ms. Wilcox would be the first Black woman to serve on the Board. She would take the seat Mark Gaston Pearce vacated, and whose vacant term is set to expire on August 27, 2023. (NLRB Board terms run for five years during precisely defined calendar periods.) We reported in February of 2019 that Mr. Gaston withdrew his name from consideration to serve another term during the Trump Administration. Since Member Gaston’s departure from the Board, the five-year term of office for his empty Board seat has been ticking down.

Board Members are appointed by the President to 5-year terms, with Senate consent, the term of one Member expiring each year.

The Current Board

1. William J. Emanuel (R) term expires……………………………..August 27, 2021
2. John F. Ring (R) term expires…………………………………..December 16, 2022
3. Vacant – (D) term expires………………………………………………August 27, 2023
4. Lauren M. McFerran, Chairman (D) term expires……….December 16, 2024
5. Marvin E. Kaplan (R) term expires…………………………………August 27, 2025

Friday, May 28, 2021: EEOC Greenlights Employer Payments for DOCUMENTATION of COVID-19 Vaccinations!

The EEOC announced updated and expanded technical assistance related to the COVID-19 pandemic. The assistance includes two new tips on how employers may lawfully pay employees for documentation that they were vaccinated against the COVID-19 virus. Buried deep within 38 pages of otherwise crisp (even though numerous) Questions and Answers are Q&A numbers K.16 and K.17 which the EEOC released on May 28, 2021. We present them in reverse order so we leave you with the possible action item:

“K.17. Under the ADA, may an employer offer an incentive to employees for voluntarily receiving a vaccination administered by the employer or its agent?  (5/28/21)

Yes, if any incentive (which includes both rewards and penalties) is not so substantial as to be coercive. Because vaccinations require employees to answer pre-vaccination disability-related screening questions, a very large incentive could make employees feel pressured to disclose protected medical information. As explained in K.16., however, this incentive limitation does not apply if an employer offers an incentive to employees to voluntarily provide documentation or other confirmation that they received a COVID-19 vaccination on their own from a third-party provider that is not their employer or an agent of their employer.”

THE EEOC THREW YOU A BIG HINT: So, the smart play for employers which hope to see all of their employees vaccinated is to PAY employees to provide the employer with documentation of the vaccination—NOT pay them to get vaccinated (and thus you may avoid the whole GINA incentive (wellness) payment conundrum):

“K.16. Under the ADA, may an employer offer an incentive to employees to voluntarily provide documentation or other confirmation that they received a vaccination on their own from a pharmacy, public health department, or other health care provider in the community? (5/28/21)

Yes. Requesting documentation or other confirmation showing that an employee received a COVID-19 vaccination in the community is not a disability-related inquiry covered by the ADA. Therefore, an employer may offer an incentive to employees to voluntarily provide documentation or other confirmation of a vaccination received in the community. As noted elsewhere, the employer is required to keep vaccination information confidential pursuant to the ADA.”

The EEOC clarified and supplemented Section “K. Vaccinations.” New subtopics include:

• COVID-19 Vaccinations: EEO Overview
• Mandatory Employer Vaccination Programs
• Voluntary Employer Vaccination Programs
• Title VII and COVID-19 Vaccinations
• GINA And COVID-19 Vaccinations [Editor’s Note: Read this chapter. Good ending.]
• Employer Incentives For COVID-19 Voluntary Vaccinations Under ADA and GINA

The Agency also released a new Fact Sheet that explains how federal laws provide employment rights during the COVID-19 pandemic. It includes information for employees on what to do in the following situations.

• I Am Being Harassed
• I Am High Risk, and I Need Extra Protection From Getting Sick
• I Am Not Being Allowed to Work
• I Need a Modification of My Employer’s COVID-19 Safety Requirements

These two publications follow the EEOC hearing on April 28 on the impact of the COVID-19 pandemic on civil rights in the workplace.

CAVEAT: The documents were prepared before the CDC’s new guidance for fully vaccinated individuals issued on May 13, 2021, and do not specifically address that new guidance.

Friday, May 28, 2021: OFCCP Seeks Unprecedented 33% Budget Increase: Focus is on Rebuilding OFCCP; Not Audit Enforcement

President Biden on Friday released his request to the Congress for a budget for the Executive Branch of the federal government for Fiscal Year 2022 (beginning October 1, 2021). All major federal agencies and sub-agencies also published their “Congressional Budget Justification” reports, including OFCCP which filed a 29-page Budget Justification. The agency Budget Justifications compare their budget requests and budgets enacted in the prior two years with the at-issue proposed Budget Request.

Highlights of the Budget OFCCP seeks include:

1. An increase of its FY 2021 Budget from the $105,976,000 (~$106 million) to $140,732,000 (~$141 million) (+$34,756,000 (~$35 million) = ~a 33% requested increase)
2. $32,566,000 of that $34,756,000 increase (~94%) OFCCP proposes to use to hire an additional 188 employees (at an average cost of $173,000 per hire: $32,566,000 divided by 188)
   • These 188 hoped-for additions to employee headcount would increase OFCCP’s on-roll headcount from its current 451 personnel to 639 (451+188)
3. A budget appropriation history at page 11 of the Justification which reports data showing that OFCCP’s budget has held relatively steady under both Democrat and Republican Administrations over the past decade, hovering between a little over $105 Million in FY 2012 to a one-year low in recent history of a little under $100 Million (in FY 2013) to almost $106 Million in each of the last two years with an average of just over $104 Million in each of the last 10 years going back to the third year of the Obama Administration.In that same 10-year time-span, however, OFCCP’s employee headcount has dropped steadily each and every year (down 304 employees), and at even a greater rate during the Obama Administration (199 employees in the five reporting years of the Obama Administration which OFCCP’s Budget Justification reports = 39.8 employees on average per year OFCCP headcount decrease (199 divided by 5)) than during the Trump Administration (105 employees in four years = only 26.25 employees on average per year headcount decrease (105 divided by 4)). However, adding in all years of the Obama Administration (including the three prior years not reported in the OFCCP’s FY 2022 Budget Justification), the Obama Administration erosion over eight years was only an average of 33 employees per year (232 employees divided by 7). Collectively, over the last 12 budget cycles (since 2010), OFCCP has lost 337 employees (232 during the Obama years and 105 during the one term of the Trump Administration) for a total annual average loss of ~30.6 employees per year (337 divided by 11).

   It is also very important to note that the Obama Administration started with an OFCCP headcount of only 585 from the hand-off from the Bush Administration. However, the Obama Administration OFCCP received a substantial budget increase in FY 2010 (+23%) following the large mandate President Obama earned at the polls in 2008. This one-time (largest ever-to-date) budget increase allowed OFCCP, for the first time, to crack the $100 Million budget ceiling. More importantly, it catapulted OFCCP headcount, for a brief moment, by 203 employees to a total of 788 OFCCP employees for FY 2010. The next year, however, (FY 2011) OFCCP resumed its steady stairstep-down headcount decrease, year-by-year, through the first and second terms of the Obama Administration and again in each year of the four-year Trump Administration (which began in the second quarter of FY 2017). The annual OFCCP headcount erosion eventually wiped out, by the end of the Obama Administration in FY 2017, the entirety of the Obama FY 2010 employee build-up…and then some…and then headcount kept steadily decreasing during the Trump OFCCP for the 11th year in a row.Here is the last 10-year headcount erosion report as taken from OFCCP’s FY 2022 Congressional Budget Justification filed with the Congress on Friday:
   – 735 – in FY 2012, the third Obama Administration budget year, to
   – 729 (-6) – in FY 2013, to
   – 683 (-46) – in FY 2014, the first year of the second Obama Administration, to
   – 621 (-62), to
   – 615 (-6), to
   – 556 (-59) – in FY 2017, the last Obama Administration budget year), to
   – 514 (-42), to
   – 500 (-14) – in FY 2019, to
   – 472 (-28), to
   – 451 (-21) – in current FY 2021, the last Trump Administration budget year).

   So, while OFCCP’s budget was relatively steady over the last decade, its employee headcount has nonetheless decreased each and every year and has collectively plummeted an eye-popping 304 employees in the last 10 years (a ~40% loss of employee headcount in that window period (304 divided by 755)).

Friday, May 28, 2021: EEOC FY 2022 Budget Plan to Emphasize Three Policy Priorities

Sounding a desire to broaden the EEOC into a generalized social services agency dedicated to solving problems beyond workplace discrimination, in her 165 page Fiscal Year 2022 Congressional Budget Justification, EEOC Chair Charlotte A. Burrows promised three “broad areas” (in a “Chair’s Message” preceding the Commission’s “Funding” requests) on which the EEOC will focus in the coming Fiscal Year, and then delivered a fourth bonus priority:

1. Racial Justice and Systemic Discrimination: Trying to be the OFCCP, the EEOC continues to hanker to expand away from its individual Charge processing mission to dive into the world of “systemic discrimination investigator/prosecutor” President Carter had reserved to OFCCP in creating the OFCCP on October 1, 1978. [EEOC was to take on the individual Charges and OFCCP was to address employment systems and systemic employment discrimination and to conduct spot audits of federal contractors across the country with its resources NOT driven by a Charge or Complaint docket, as was the EEOC].“With this proposed budget, the Commission will provide renewed attention to tackling systemic discrimination in all forms and all bases — including but certainly not limited to racial and sexual harassment.  Eliminating systemic barriers to equal opportunity in the workplace will allow the EEOC to leverage its work to achieve the greatest impact. The EEOC has numerous tools to combat racial discrimination, including outreach, technical assistance, and enforcement and will use all of them to achieve change on a broad scale.” (See p. 5 of the EEOC’s Report).On the educational side of the EEOC’s authority, the Commission is apparently planning more technical assistance of an undescribed type (perhaps corporate training and/or more Q&A’s and/or static web page materials). To give meaning to Chair Burrow’s reference to increased systemic enforcement, her statement implies the renewed use of either Commissioner’s Charges (authorized only pursuant to Title VII, the Americans with Disability Act and the Genetic Information Nondiscrimination Act) and/or Directed Investigations (authorized only as to the Age Discrimination in Employment Act and the Equal Pay Act) to shape the EEOC’s enforcement direction (as opposed to investigating what comes in the door and thus being merely reactive to the Commission’s Charge docket).
2. Pay Equity: Citing to “comparable worth” pay statistics (which the SCOTUS struck down in 1981 as not a discrimination theory the Congress had recognized) to justify its concern that “women working full-time all year make only 82 cents to the dollar when compared to white non-Hispanic males” across all job titles in America, Chair Burrows described the EEOC’s Pay Equity direction in FY 2022 as follows:“In addition to traditional outreach and enforcement, including litigation, the Commission will pursue ways to address pay discrimination and unjustified wage gaps through pay data collection, working with the National Academies of Science and stakeholders to help the agency better understand how we can more effectively address discriminatory practices.”
3. Civil Rights Impact of the Pandemic: “The COVID-19 pandemic has proved to be not only a public health crisis and economic crisis, but also a civil rights crisis.  COVID-19 and its economic fallout has disproportionately impacted people of color, women, older workers, individuals with disabilities, and other vulnerable workers.On April 28, 2021, I convened a public hearing to explore the many ways in which the COVID-19 pandemic has impacted civil rights in the workplace.  In addition, the Commission has and will continue to provide numerous resources to assist employers and employees as they grapple with pandemic issues.  As the health emergency subsides, increased questions arise surrounding re-entry, vaccinations, and the future of work.  The EEOC stands poised to address this dynamic and emerging area of the law with our colleagues throughout the administration.”
4. “Strengthening the Agency: “In fiscal year 2020, EEOC’s full-time staffing had dropped to its lowest level in four decades, from over 3,390 employees in 1980 to less than 2,000 employees last year.  During that same period, even as the agency’s resources declined, its workload was expanding due to the increase in the U.S. population and passage of important new legislation, such as the Americans with Disabilities Act of 1990 and the Genetic Information Nondiscrimination Act of 2008.  Fortunately, Congress’ support in the EEOC’s FY 2021 budget has allowed me to begin rebuilding the agency’s capacity.  Early in my tenure in FY 2021, I authorized the hiring of more than 450 new staff throughout the agency — predominately front-line staff (investigators, mediators, attorneys, and administrative staff, among other positions) to help restore our ability to fulfill the agency’s vital role in helping prevent and remedy employment discrimination.  The addition of these new employees in mission-critical positions is a down payment on what I hope will be a long-term investment to ensure that the EEOC has resources commensurate with its task. With the President’s mark and robust workforce planning, I plan to continue to invest in hiring and training to empower our staff to enforce the agency’s mission.”

At the same time, the Commission has annually been crowing in Republican and Democrat Administrations about reducing Charge inventories to modern new-time lows and increasing discrimination recoveries—in each and every one of the last four Fiscal Years– with reduced staffs rendered unnecessary through the greater use of managerial efficiency and technological tools:

FY 2017 (inventory down +16%): EEOC Dramatically Reduces Charge Inventory   (“…in fiscal year 2017 the EEOC resolved 99,109 charges and reduced the charge workload by 16.2 percent to 61,621, the lowest level of inventory in 10 years. (emphasis added) Additionally, during the fiscal year, the EEOC handled over 540,000 calls to the toll-free number and more than 155,000 contacts about possible charge filing in field offices, resulting in 84,254 charges being filed.”  November 9, 2017 EEOC Press Release)

FY 2018 (inventory down 19.5%): EEOC Releases Fiscal Year 2018 Enforcement and Litigation Data  “The EEOC resolved 90,558 charges of discrimination. Overall, the EEOC secured $505 million for victims in private sector, state and local government, and federal workplaces. The agency reduced the charge workload by 19.5 percent to 49,607. (emphasis added) It achieved this through deploying new strategies to more efficiently prioritize charges with merit, more quickly resolve investigations, and improve the agency’s digital systems. The agency handled over 519,000 calls to its toll-free number, 34,600 emails and more than 200,000 inquiries in field offices, reflecting the significant public demand for the EEOC’s services.” April 10, 2019 EEOC Press Release reporting FY 2018 Charge and other data.)

FY 2019 (inventory down 5%): Fiscal Year 2019 Agency Financial Report U.S. Equal Employment Opportunity Commission “For example, in the private sector, with a focus on inventory reduction strategies and priority charge handling procedures, along with technological enhancements and the hiring of front-line staff, we were able to reduce the charge workload by 12.1 percent to 43,580.  In fiscal year 2019, the EEOC also prioritized reducing the pending inventories in the federal sector, and as a result the agency made progress in reducing both the federal sector hearings and appeals inventories. Through the development and implementation of strategies to increase efficiency, the agency reduced the pending inventory of federal sector hearings by 5 percent and increased its hearing resolutions 22.5 percent in fiscal year 2019. Similarly, through strategic efforts with the pending federal sector appellate inventory, the agency was able to reduce the size of the appellate inventory by 17.4 percent from the beginning of fiscal year 2018.” (emphasis added)

FY 2020 (inventory down 3.7%): EEOC Releases Fiscal Year 2020 Enforcement and Litigation Data “EEOC resolved 70,804 charges in FY 2020 and increased its merit factor resolution rate to 17.4 percent from 15.6 percent the prior year. Merit resolutions refer to charges that are resolved in the agency’s administrative process (pre-litigation) in favor of the individual who filed the charge. The agency responded to over 470,000 calls to its toll-free number and more than 187,000 inquiries in field offices, including 122,775 inquiries through the online intake and appointment scheduling system, reflecting the significant public demand for EEOC’s services. The agency also reduced its inventory of pending charges by 3.7 percent.” (emphasis added)

“EEOC advances opportunity for all of our nation’s workers and plays a critical role in ensuring justice in the American workplace,” said EEOC Chair Charlotte A. Burrows.  “Despite an incredibly challenging year, the EEOC’s dedicated workforce advanced the agency’s mission to fight employ­ment discrimination on all fronts.” (emphasis added)

OFCCP Event This Week

The Office of Federal Contract Compliance Programs (OFCCP) Southeast Region will host an online meeting titled “The Importance of Reasonable Accommodations.”

Presenters include:

• Job Accommodation Network (JAN), Brittany Lambert, Senior Consultant
  [We know/work with Brittany. She is terrific. Don’t miss her clear/concise guidance.]

• Alabama Department of Rehabilitation Services, Leslie Dawson, State Administrator and Daniel Spencer, Business Relations Consultant

Date and Time

• Wednesday, June 2, 2021, 12:00 – 1:30 pm EDT

Register via Eventbrite.

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.