Affirmative Action News - EEO, AAP, and OFCCP Updates for Federal Contractors

EEO-1 Pay Data and Hours Worked Reporting Obligation Re-Instated (Federal Court Lifts Stay)

March 6, 2019 by Phil Akroyd

Yesterday, March 4th 2019, the United States District Court for the District of Columbia vacated the Office of Management and Budget’s stay on the EEOC’s revised EEO-1 Pay Data Collection form, and ruled that the previously approved form be implemented immediately.

Essentially, this means that federal contractors will be required to collect employee W-2 pay data and hours worked (Component 2 of the revised EEO-1 form) at the individual level, in addition to the standard EEO-1 form fields, such as EEO-1 category, race/ethnicity, and gender data. This is effective immediately, meaning federal contractors are legally required to report this information in the upcoming EEO-1 filing.

The EEO-1 filing period for this current cycle was originally scheduled to occur between Jan 1st, 2019 to March 31st, 2019. However, with the recent government shutdown, the deadline has been pushed to May 31st. The EEO-1 filing website is still currently closed but is slated to open on March 18th, 2019. It is assumed that that current EEO-1 system will now need to be updated in order to receive the newly required hours worked and pay data, which may result in the current filing period being pushed back . . . again.

To add further uncertainty, the OMB or the EEOC could potentially appeal the removal of the stay, at which point we could revert to the filing requirements in place March 3rd, 2019. In that case, federal contractors would simply file Component 1 of the revised form, without wage and hours data. The EEOC currently has only two of the five Commissioner seats filled, and without a Chair Person (Commissioner Lipnic is currently acting Chair), their ability to act on the appeal is also uncertain.

With so much change and uncertainty, we recommend that federal contractors not take any action to start collecting pay and hours worked data as of now. However, Contractors do need to be aware that it could be a very real requirement in the medium and long-term, specifically later this year. In addition, employers should at least inform decision-makers of the potential that this information could be required this year.

Hold tight for further developments on this topic. They will be communicated as more details emerge.

2019 BCGi Summit: Speaker Spotlight #3

March 5, 2019 by Biddle EEO/AAP Team

Industry thought leaders and subject matter experts will be presenting at the BCGi Summit: Striving for Diversity: Sure It’s Required…But It’s The Right Thing To Do! We’d like to introduce you to our speakers.

Session Title: Diversity, Inclusion, and Unconscious Bias: The Truths Employers Can’t Afford to Ignore

With society’s increasing focus on EEO, “D&I” is an oft-cited phrase. But, what does it really mean, beyond a nondiscrimination policy? How do employers implement D&I in a meaningful, sustained way, and create a corporate culture that truly fosters an open and diverse environment? In this presentation, Christy Kiely will distinguish “Diversity” and “Inclusion,” explain their interplay, and provide practical suggestions for institutionalizing their philosophies. She will also discuss the very real problem of unconscious bias. As its name suggests, unconscious bias is a subtle form of prejudice that we all unknowingly, and unintentionally, harbor to some degree. Learn how to identify unconscious bias, raise awareness of the issue, and combat its potentially damaging effects.

Christy E. Kiely

Christy’s practice encompasses employment litigation, EEOC charges, #MeToo investigations, pay equity analyses, advice, training, affirmative action, and audit defense before the OFCCP.

Christy’s work focuses on pay equity analyses, affirmative action work and audit defense before the Office of Federal Contract Compliance Programs. She also has substantial experience with employment litigation in federal and state courts, administrative practice before the Equal Employment Opportunity Commission, and advice to business management and in-house counsel on a full range of employment issues. Christy enjoys conducting management and supervisor training on a wide range of legal and practical employment issues. She is a contributing author to the Hunton Employment & Labor Perspectives blog.

Christy is admitted to practice before the US Court of Appeals for the Fourth Circuit, the US District Court for the Eastern District of Virginia, and the US District Court for the Western District of Virginia.

Session Title: Applicants with Disabilities – UNKNOWN Barriers to Risk and Poor Applicant Experience

Join Sheridan Walker, CEO and founder of HirePotential, as she discloses the unknown barriers and risk exposure that are affecting your recruiting efforts and provides the solution to resolve. Many companies think they may have the appropriate process in place that provides full inclusion for individuals with disabilities, but many don’t know the hidden barriers and unknown gaps that could lead to a loss of qualified talent, poor candidate experience and potential risk. Get in the know, take action and gain knowledge while learning the tools to minimize the potential risk, optimize your recruiting efforts, and provide a positive candidate experience.

Sheridan Walker

Ms. Walker is the founder and president of HirePotential, Inc. which is a women owned national firm providing employment solutions to government contractors since 1999. HirePotential is focused on providing companies results on recruiting, hiring, accommodating, compliance and the managing people with disabilities

Prior to HirePotential, Ms. Walker was employed by Alternative Resources Corporation, A-R-C, a national IT management and staffing business, as the Program Manager of Disability and Inclusion to create, build and deliver the recruiting and hiring qualified candidates with disabilities for positions in the IT field. In the first year, this specific recruiting solution generated over $7 million in incremental revenue for A-R-C in the first year. She continues to assist companies in their success with recruiting, hiring and accommodating people with disabilities.

Ms. Walker has served on the National Disability Mentoring Day Committee for Colorado and the US Business Leadership Network on the Employment of People with Disabilities. She has also served on the formally known President’s Task Force on the Employment of People with Disabilities, Colorado Business Leadership Network for the employment of people with disabilities and served on the Denver Mayor’s Commission of People with Disabilities. She is also a former board member of the American Association for Access, Equity & Diversity, AAAED. Served as the sole trainer on disability inclusion for several future 1000 and 500 companies delivering eLearning, eBooks, webinars, and onsite training. She has lectured across the country regarding several issues around disability issues such as compliance, employment, retention, accommodations, risk management and worker’s compensation. She is certified with the American Board of Disability Analysis.

What’s Included (beyond the regular sessions):

Meals: Breakfast (April 4 & 5, 2019) and lunch (April 4 only)

Bonus #1: SPACE IS LIMITED. Schedule a 30-minute one-on-one session with experts in Affirmative Action Planning, Compensation Analysis, Testing & Validation, or Diversity Strategies. Meetings will be the day prior to the conference (April 3, 2019).

Bonus #2: Free registration for the pre-conference Foundations of AAP Development webinar to be held the week prior.

Thursday Night Social Event Sponsored by Biddle

Important Details:

When:

Pre-conference: Wednesday, April 3

Conference: Thursday, April 4 & Friday, April 5, 2019

Where: Pier 1, Bay 1, San Francisco, CA 9411

Registration Fee:

$695 (Early Bird Pricing – Get $100 off until February 28th!)

California Fair Pay Act Session (Pre-conference) – $245

For more information visit, www.bcginstitute.org/event/summit2019

OFCCP Compliance Assistance Town Hall Meeting to Address the Tech Sector

March 1, 2019 by Dan Kuang, Ph.D.

OFCCP recently held a day long Compliance Assistance town hall meeting for the tech industry sector. Not only was this an opportunity for contractors to better understand compliance audits directly from the OFCCP, it was an opportunity for OFCCP to listen to and better understand the tech sector. Was it important and impactful? Absolutely!!!

A lot of good information was exchanged during the day long town hall. For the average federal contractor, however, they are most interested to know what OFCCP, specifically Director Craig Leen, had to say about compliance and audits. Here are some notable takeaways:

1) In his opening speech, Director Leen focused on three key drivers behind future audits. The first is Transparency. From prior town hall meetings with prior Director Harris, the OFCCP recognized the frustration and mistrust shared by many contractors. In an effort to tackle those concerns head-on, OFCCP has committed itself to a practice-culture of transparency. Notably, OFCCP has issued a directive on their practice of transparency (DIR 2018-08). Related to a more transparent OFCCP, Director Craig Leen points to the requirement for Predetermination Notice (PDN) before a Notice of Violation (NOV) is issued (Directive 2018-01) and a public clarification of methodology for contractor audit selection. Taken together, a policy of transparency will provide a procedural check of the OFCCP and greatly reduce mistrust.

Additionally, contractors who wish to practice transparency are encouraged with incentives: Early Resolution Procedures (ERP, Directives 2019-02) and Voluntary Enterprise-wise Review Program (VERP, Directive 2019-04). Contractors interested in knowing more about ERP or VERP can contact Biddle Consulting Group for more information.

One of the most critical benefits of OFCCP’s pursuit of transparency is Directive 2019-03—Opinion Letters and Help Desk. It is arguably one of the most misunderstood Directives, as explained by Director Leen. In concept, contractors can reach out to the OFCCP for clarification on any questions a contractor may have and an OFCCP response can be considered as OFCCP “methodologically-compliant.” During a town hall Q&A session, our group asked Director Leen, “Can we apply Directive 2019-03 to get the OFCCP sign-off on a proposed method, if we submitted it to the Help Desk and received a confirmative Opinion Letter?” Director Leen openly answered this with two important points: 1) There will be no retaliation for contractors who reach out to the help desk, and 2) if the Help Desk/OFCCP issues an Opinion Letter confirming a methodology, then it is considered compliant. This is huge, so I will be writing more directly to this in a separate paper.

2) Second, is Certainty and Director Leen explained that there should be no uncertainty when it comes to compliance. He does not want to see ad hoc approaches to compliance audits—preliminary OFCCP audit models driving a compliance audit. Contractors should know exactly where the compliance goal line is and aim for that with no misunderstandings. This has always been a major complaint among contractors, but, as Director Leen pointed out, with Directive 2019-03 there’s no good reason for uncertainty.

3) Third, is Efficiency—audit should not take so long. I have no disagreements, in concept. In an ideal world, contractors should have their AAPs and supporting data (e.g., employee file, hires, promotions, terminations data files), completed and ready for the OFCCP at a moment’s notice. The goal is to decrease the time required of each audit so the OFCCP can cover a greater number of audits more efficiently. As Director Leen indicated, efficiency requires the agency to move away from an Active Case Enforcement (ACE) audit model, which requires heavy investments in both time and effort into each audit, and onto a more efficient model for audit where the OFCCP will seek: 1) quick compliance closure if there are no or light indicators that can be readily explained or 2) escalate to litigation with the Administrative Law Judge (ALJ) if there are indicators that cannot be explained.

The goal, as articulated by Director Leen is to spend less time on each audit (by closing or escalating to ALJ more quickly) and investigate more contractors.

4) Other notable compliance take-aways include a focus on:

Promotions—Adverse Impact
Section 503—Rehabilitation Act

Conclusions

Taken together, Director Leen is hoping for a more seamless and minimally disruptive compliance experience for contractors. Indeed, this can be achieved with increased transparency along with certainty and efficiency. The challenge is for these aspirational goals to trickle down into action, where the rubber meets the road. We are patiently waiting.

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