Tag Archives: OFCCP

Employers May Soon Be Required To Report Pay Information in Their EEO-1 Reports

Contributed by Debra Mastrian

Employers, including federal contractors, who are required to file annual Employer Information Reports (also known as EEO-1 reports) with the U.S. Equal Employment Opportunity Commission (EEOC) and the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP), may soon have additional reporting requirements. Currently, employers with more than 100 employees and certain federal contractors with 50-99 employees, have to report the number of full-time and part-time employees by sex, race, ethnicity and job category on their EEO-1 reports.

CashThe EEOC recently announced a revision to the EEO-1 report to add aggregate pay data on pay ranges and total hours worked for employers, including federal contractors, with 100 or more employees. Federal contractors with 50-99 employees would not report the aggregate pay data but would continue to report the other required information. The announcement was made on January 29, 2016 at the White House Equal Pay Event commemorating the anniversary of the Lilly Ledbetter Fair Pay Act. The Chair of that event noted that the EEOC has made equal pay a national priority.

The proposed revision was made after commissioning independent studies and gathering input from various sources. The EEOC and the OFCCP will use the information to detect pay discrimination and trends in occupations and industries. The federal agencies also believe the information will help employers assess their own pay practices.

The pay data would be based on employees’ W-2 earnings. For each of the defined EEO-1 job categories (Executive/Senior Level Officials and Managers, First/Mid-Level Officials and Managers, Professionals, Technicians, Service Workers, etc.), employers would have to include the number of employees by sex, race and ethnicity that fall in certain defined pay bands. In determining which pay band is appropriate, employers would use employees’ total W-2 earnings for a 12-month period looking backward from a pay period between July 1st and September 30th. The total number of hours worked by the employees in each pay band would also be reported.

The EEOC and OFCCP plan to develop statistical software to analyze the reported data. It is not yet clear what will be considered as a discriminatory pay practice. Perhaps most concerning to employers is that non-discriminatory factors (such as differences in experience or education) will not be reflected in any statistical analysis because, under the current proposed rule, there is no provision for collecting that information.

The proposed revision, which is available on the Federal Register website, was published on February 1 and is open for public comment through April 1. The EEOC will consider any public comments and hold a public hearing before publishing the final rule.  The final rule would take effect for the September 2017 EEO-1 reports.

OFCCP: Affirmative Action Contractors Update on Compliance with Sexual Orientation and Gender Identity Obligations

Contributed by Heather Bailey

This is the first time since 1974 that the protected classes for affirmative action contractors have been modified.  The effective date for compliance is April 8, 2015 for any new or modified contracts (more than $10,000). At this time, you must begin implementing the new requirements related to sexual orientation and gender identity applicants and employees. The OFCCP held webinars in March to give contractors guidance on what they are expecting out of these new requirements.  Here is what we learned:

  • It is encouraged that all affirmative action contractors should follow these adjustments and incorporate these two protected classes in their affirmative action efforts (even if you don’t fall under the new regulations).
  • Job Advertisement Tag Lines – if it currently lists all protected statuses (e., race, national origin, sex, religion), then you must include sexual orientation and gender identity with the full list.  Alternatively, if you do not list the specific classes it is appropriate to just have Equal Employment Opportunity Employer.  One exception is if you are covered by the veteran and individuals with disabilities regulations.  If so, the OFCCP opined a sufficient tag line is “Equal Employment Opportunity Employer/Veterans/Disabled.”  Please note that the OFCCP warned that the abbreviation “LGBT” should not be used since the abbreviation does not cover all individuals identified under sexual orientation and gender identity.
  • EEO is the Law Poster – they are creating a supplement in the near future, soon after the effective date.  In the meantime, ensure the current version is posted.
  • Offered Benefits – the basic rule of thumb is if you offer the benefit to opposite sex married couples, you must offer the same to same sex married couples who are married in a state or territory that recognizes those marriages.  You are not, however, required to give those benefits to individuals in civil unions or domestic partnerships unless of course you offer the benefits to similar opposite sex unmarried couples.

What has not changed with your obligations for the addition of sexual orientation and gender identity individuals:

  • No new placement, outreach and employment goals;
  • No self-identification requirement;
  • No data collection requirement;
  • No Handbook or Affirmative Action Plan update required (OFCCP did opine it was a best practice to include these protected classes in any EEO clause);
  • No mandatory training (but still encouraged); and
  • No change to religious exemption.

Why is this important?  Not only is this a good business practice to incorporate these two classes of individuals in your equal employment opportunity efforts, but the OFCCP will share and coordinate with the EEOC with a joint investigation and/or referral if they notice any type of discriminatory impact, intent, practice, etc. for individuals and even class complaints.

It is recommended you seek counsel advisement on getting started to ensure compliance, but the OFCCP also offers resources for contractors in order to give guidance and FAQs at http://www.dol.gov/ofccp/LGBT/LGBT_resources.html.