affirmative action update 2017
TRANSCRIPT
Affirmative Action Update 2017
Presented for: Lorman Education
Services
James K. Cowan, Jr.540.443.2860 Direct
Affirmative Action Regulations
• Affirmative Action regulations are administered by
the Department of Labor’s Office of Federal
Contract Compliance Programs (“OFCCP”).
• http://www.dol.gov/ofccp/aboutof.html
• There is a wealth of information to be found on the
OFCCP’s home page, including sample narrative
affirmative action plans and related materials at:
• www.dol.gov/ofccp/index.htm
• Today, we will focus on recent changes and
a number of new Executive Orders
The RulesExecutive Order 11246, its Recent Amendments and Final Rules:
EO 13665, Prohibitions Against Pay Secrecy Policies and
Actions (amended EO 11246; final rule; effective
January 11, 2016)
EO 13672, Prohibiting Discrimination Based on Sexual
Orientation and Gender Identity (amended EO 11246; final
rule as of April 8, 2015)
EO 13658, Establishment of Minimum Wage for Federal
Contractors (final rule as of January 1, 2015; updated
January 1, 2016 & thereafter)
EO 13706, Establishing Paid Sick Leave for Federal Contractors;
Secretary of Labor to issue regulations by September 30,
2016; goes into effect January 1, 2017
EO 13673, Fair Pay and Safe Workplaces Act
The Rules, cont.
New EEO-1 Report (formerly known as the proposed
Equal Pay Report), to be included in 2017 EEO-1
New Sex Discrimination Guidelines
• Changes to the Rehabilitation Act of
1973 (Section 503)
• Changes to the Vietnam Era Veterans
Readjustment Assistance Act (VEVRAA)
(Section 4212)
Which
rules
apply?
Executive Order 11246
Executive Order 11246 prohibits federal
government contractors and subcontractors from
discriminating in employment on the basis of
race, color, religion, national origin, sex, sexual
orientation, and gender identity, and requires
affirmative action with respect to minorities and
females to ensure nondiscrimination.
41 CFR § 60, et seq.
Executive Order 13672
An amendment to EO 11246, this rule prohibits
discrimination based on sexual orientation and/or gender
identity
Became effective on April 8, 2015 and applies to contracts
entered into on or after April 8, 2015
Amended language in all affirmative action clauses and
notices: race, color, religion, national origin, sex, sexual
orientation, and gender identity
FAQs: http://www.dol.gov/ofccp/LGBT/LGBT_FAQs.html
Complaints of discrimination under this new rule may
be investigated and enforced under both EO 11246 and
under Title VII
Executive Order 13665
Prohibitions Against Pay Secrecy and Actions; this rule
amends EO 11246 and became effective on January 11, 2016
Prohibits federal contractors from discharging or discriminating
against employees or applicants for disclosure, inquiry, or
discussion about compensation with others
Prohibits adverse treatment for disclosure, inquiry or discussion
regarding compensation with other employees
Full text of Final Rule:
https://www.gpo.gov/fdsys/pkg/FR-2015-09-11/pdf/2015-22547.pdf
EO 13665 – EEO clause
Requires that the equal opportunity clause included in covered
federal contracts and subcontracts be amended to include that
federal contractors and subcontractors must refrain from
discharging, or otherwise discriminating against, employees or
applicants who inquire about, discuss, or disclose their
compensation or the compensation of other employees or
applicants.
A contractor’s federal contracts, subcontracts, or purchase
orders may incorporate 41 CFR 60–1.4, the equal opportunity clause provision of the regulations, by reference into their contracts and subcontracts.
EO 13665 – Pay Transparency Policy Statement
Contractors must incorporate the nondiscrimination provision into
their existing employee manuals or handbooks and disseminate the
nondiscrimination provision to employees and to job applicants,
verbatim, as follows:
PAY TRANSPARENCY POLICY STATEMENT
The contractor will not discharge or in any other manner
discriminate against employees or applicants because they
have inquired about, discussed, or disclosed their own pay or
the pay of another employee or applicant. However, employees
who have access to the compensation information of other
employees or applicants as a part of their essential job
functions cannot disclose the pay of other employees or
applicants to individuals who do not otherwise have access to
compensation information, unless the disclosure is (a) in
response to a formal complaint or charge, (b) in furtherance of
an investigation, proceeding, hearing, or action, including an
investigation conducted by the employer, or (c) consistent with
the contractor’s legal duty to furnish information.
Executive Order 13658
On January 1, 2015, this rule established a new minimum wage for
federal contractors ($10.10/hour) to be increased by the Secretary of
Labor on January 1, 2016 and annual thereafter, as permitted by the
Executive Order.
Applies to new contracts and replacements for expiring contracts with
the Federal Government that result from solicitations issued on or
after January 1, 2015 or to contracts that are awarded outside the
solicitation process on or after January 1, 2015.
FAQs: http://www.dol.gov/whd/flsa/eo13658/faq.htm
Effective January 1, 2017, the minimum wage is $10.20/hour.
Also, beginning January 1, 2017, tipped employees performing
work on or in connection with covered contracts generally
must be paid a minimum cash wage of $6.80/hour.
Executive Order 13706 Establishes paid sick leave for federal contractors; goes into effect
January 1, 2017.
Contracts and subcontracts must specify, as conditions of payment
in the performance of the contract or subcontract:
• Employees shall not earn less than 1 hour of paid sick leave per
30 hours worked;
• Contractors shall not set a limit of less than 56 hours accrual of
sick leave per year;
• Paid sick leave shall carry over from one year to the next; and
shall be reinstated for employees rehired by a covered
contractor within 12 months after a job separation.
• Use cannot be made contingent upon employee finding a
replacement to cover missed work time
EO 13706 – Enforcement
A contractor may not interfere with or discriminate
against employees for taking, or attempting to take, paid
sick leave as provided for under EO 13706 or in
asserting, or assisting other employees in asserting any
right or claim related to the order.
The Secretary of Labor will investigate potential
violations of, and obtain compliance with, the terms of
this order.
Full text of EO 13706: https://www.whitehouse.gov/the-
press-office/2015/09/08/executive-order-establishing-
paid-sick-leave-federal-contractors
Sections 4212 (VEVRAA) and
503 (Rehabilitation Act of 1973)
On March 24, 2014, this section was amended to include:
Annual hiring (not incumbent) benchmark for protected veterans
(either equal to percentage of veterans in national civilian
workforce, which varies each year, or by calculated
individualized benchmarks)
Collection, documentation, and analysis of number of protected
veteran applicants and hires
Invitations to protected veterans to self-identify at pre- and post-offer
stages
Required specific language when incorporating the EEO
clause in a subcontract by reference
Job listing requirement to provide information in manner
and format permitted by state/local job services
The VEVRAA Benchmark
As of March 4, 2016, the national percentage of
veterans in the civilian labor force was 6.9%
When considering whether to customize your
benchmark, you should first examine the available
data. For example, the average percentage of veterans
in the civilian labor force for the prior 3 years (2013,
2014 and 2015) in Virginia was 11.7%; in Texas, the
average was 7.4%
Link to VEVRAA Benchmark Database, specifics and
sample data for the 5-factor test:
https://ofccp.dol-esa.gov/errd/VEVRAA.jsp
Veterans’
Infographic
In August 2015, the
OFCCP released “Am I a
Protected Veteran?” This
infographic helps
applicants and
employees determine if
they are eligible to self-
identify as protected
veterans.
Section 503 Reminder
Effective March 24, 2014, this section was amended to require:
Contractors with more than 100 employees have a workforce goal of
7% utilization of persons with disabilities, by job group
Required collection, documentation, and analysis of the
number of disabled applicants and hires
Contractors with fewer than 100 employees have a workforce
goal of 7% utilization of persons with disabilities, workforce-
wide
Application process must be inclusive of applicants with
disabilities
The OFCCP’s Section 503 compliance checklist
is available here:
http://www.dol.gov/ofccp/regs/compliance/checklistforComplian
cewithSection503_JRF_QA_508c.pdf
The OFCCP has posted a 50-second video on its website, called “Disability Inclusion Starts
with You,” to share with employees and applicants who may be reluctant to self-identify, or
who may not understand the reasons for self-identification. It is available with and without
captioning here: http://www.dol.gov/ofccp/SelfIdVideo.html
Contractors may wish to download and post this video on their Intranet or company website to
share with employees and job applicants.
VEVRAA and Section 503
Annual Assessment and Audit
Don’t forget! Contractors must design and implement an audit
and reporting system to:
Determine the need for remedial action
Determine whether disabled individuals and protected veterans had
the opportunity to participate in the company's education, training,
recreational and social activities
Measure compliance with affirmative action plan obligations
Document actions taken to comply, and
If deficiencies are found, undertake necessary action to come into
compliance.
To Keep or Not to Keep:
Statistical Reports/Records
Selection and hiring records should be kept for three (3) years,
because federal contractors will now create auditing and reporting
systems under Sections 4212 and 503.
Any employment or personnel record kept by the contractor must be
retained for two (2) years after the record is made or the personnel
action is taken, whichever is later, but
Contractors must evaluate and document the effectiveness of
their recruiting of disabled individuals and protected veterans.
Documentation must include the criteria used to evaluate the
recruiting efforts and conclusions as to the success of those
efforts. Contractors must maintain this data, and the report
created from that data, for three (3) years.
To Keep or Not to Keep:
Statistical Reports/Records
Annual Written Report Required: At the end of the annual
assessment, the contractor will create a written report that
becomes a part of the company's AAP. The report must include:
The criteria used to evaluate the effectiveness of each outreach
and recruitment effort used; and
Provide the contractor's conclusion on the effectiveness of
the program. The criteria in the report must include an
assessment of the annual hiring data for the current year
and the two previous years (this began March 24, 2014)
Revision to EEO-1 Report
The new report, beginning in 2017, includes:
Contractors with 50 to 99 employees: Total number of
workers in a specific EEO-1 job category by race, ethnicity
and gender (same as the current EEO-1)
Contractors with 100+ employees: aggregate W-2 data in
12 pay bands (provided by the EEOC in this proposed rule)
in each EEO-1 job category, and total hours worked by
employees within each of the 12 pay bands
New EEO-1 Report
Requires reporting of pay data already maintained in the normal
course of business.
In consultation with the DOJ, the EEOC and OFCCP focused on
how EEO-1 pay data would be used to assess complaints of
discrimination, focus investigations, and identify employers with
existing pay disparities that might warrant further examination. The
EEOC and OFCCP anticipate that the process of reporting pay data
may encourage employers to self-monitor and comply voluntarily if
they uncover pay inequities.
EEO-1 Filing Rule Changes
Effective September 2015, if a company has multiple
establishments located at the same address, and those
establishments have the same NAICS code and the same
EIN, the establishments MUST be combined into only one
report.
Employers must provide the company’s EIN on the EEO-1
report.
EEO-1 Survey Link:
http://www.eeoc.gov/employers/eeo1survey/
Companies can now obtain and reset their EEO-1 filing
passwords. https://egov.eeoc.gov/eeo1/login_help.html
On June 14, 2016, the Office of Federal Contract Compliance Programs
announced publication of a Final Rule in the Federal Register that sets forth the
requirements that covered contractors must meet under the provisions of
Executive Order 11246 prohibiting sex discrimination in employment.
This Final Rule updates sex discrimination guidelines from 1970 with new
regulations that align with current law and address the realities of today’s
workplaces.
The Final Rule deals with a variety of sex–based barriers to equal employment
and fair pay, including compensation discrimination, sexual harassment, hostile
work environments, failure to provide workplace accommodations for pregnant
workers, and gender identity and family caregiving discrimination.
The Final Rule became effective on August 15, 2016.
Sex Discrimination Guidelines
Sex Discrimination Guidelines
Leave for childcare must be made available to men on the same
terms as it is available to women.
Contractors must provide workplace accommodations,
ranging from extra bathroom breaks to light-duty
assignments, to women affected by pregnancy, childbirth,
and related medical conditions comparable to the
accommodations that they provide to other workers similar
in their ability or inability to work, such as workers with
disabilities or occupational injuries.
Adverse treatment of an employee based upon gender-
stereotyped assumptions about family caretaking responsibilities
is discrimination.
Executive Order 13673
Fair Pay and Safe Workplaces Order
See Associated Builders and Contractors of Southeast Texas, et al. v.
Anne Rung, Administrator, Office of Federal Procurement Policy, Office
of Management and Budget, et al.; USDC EDTX, 1:16-cv-00425. As of
October 24, 2016, a preliminary injunction was entered. Disclosure
provisions are not in effect at this time.
Paycheck transparency requirements go into effect on January 1, 2017.
Executive Order 13673
Will require federal contractors, at the time of bid solicitation for
contracts of $500K+, to disclose certain labor violations during the past
three (3) years
Will require subcontractors whose subcontracts are $500K+ to
make the same disclosures
If the injunction is lifted, reporting requirements of this EO include the following:
Contractors must make certain disclosures at each pay period
to employees, including the number of hours worked, rate of
pay, deductions from pay, etc.
EO 13673, continued
Contractors must update their disclosures to the government
agency with which they have the contract every six months
during contract performance
Contracting agencies must consult with a Labor Compliance
Advisor and consider the disclosures made by the bidding
contractor before awarding the contract
Federal contractors with contracts over $1M may only enter into
pre-dispute arbitration agreements with employees under Title
VII, or for any tort arising from sexual harassment or assault,
with the agreement of the employee or contractor after the
dispute arises
EO 13673, continued
Phased-In Implementation Schedule (struck-through dates
indicate requirements under preliminary injunction):
October 25, 2016: The final rule takes effect. Mandatory disclosure and assessment of labor law compliance begins for all prime contractors under consideration for contracts with a total value greater than or equal to $50 million. The reporting disclosure period is initially limited to one (1) year and will gradually increase to three (3) years by October 25, 2018.
January 1, 2017: The Paycheck Transparency clause takes effect, requiring
contractors to provide wage statements and notice of any independent
contractor relationship to their covered workers.
April 25, 2017: The total contract value threshold for prime contracts requiring disclosure
and assessment of labor law compliance is reduced to $500,000.
October 25, 2017: Mandatory assessment begins for all subcontractors under
consideration for subcontracts with a total value greater than or equal to $500,000.
EO 13673, continuedWage Statement
The wage statement must contain the hours worked, overtime hours, rate of pay,
gross pay, and an itemization of each addition to and deduction from gross pay.
If a significant portion of the contractor's workforce is not fluent in English, the wage
statement must also be provided in the language(s) other than English in which that
portion or those portions of the workforce are fluent.
The wage statement provided to workers who are exempt from overtime pay under
the FLSA need not include a record of hours worked if the contractor informs the
individuals of their exempt status.
Independent Contractor Notice
Contractors must provide workers whom they consider to be independent
contractors a notice informing them that they are being treated as independent
contractors.
“EEO Is the Law” Poster Supplement
The EEOC’s “EEO Is the Law” poster was last revised in November 2009 and
consists of two pages. You must also post the September 2015 supplement
(see image in next slide).
Link to November 2009 “EEO Is The Law” Poster*:
http://www.dol.gov/ofccp/regs/compliance/posters/pdf/eeopost.pdf
Link to September 2015 Supplement*:
http://www.dol.gov/ofccp/regs/compliance/posters/pdf/OFCCP_EEO_Suppleme
nt_Final_JRF_QA_508c.pdf
Link to the DOL’s Poster website, for these and foreign language versions:
http://www.dol.gov/ofccp/regs/compliance/posters/ofccpost.htm
*You should also post these links on your company’s website,
along with your EEO statement, on your employment page.
Required Language/Posters
Links to pay transparency language (you may use links on your websites):
Formatted (poster):
http://www.dol.gov/ofccp/pdf/PayTransparencyNotice_JRFQA508c.pdf
Not Formatted (for inclusion as text):
http://www.dol.gov/ofccp/pdf/EO13665_PrescribedNondiscriminationPostingLan
guage_JRFQA508c.pdf
EEO is the Law poster:
http://www.dol.gov/ofccp/regs/compliance/posters/pdf/eeopost.pdf
EEO is the Law poster supplement:
http://www.dol.gov/ofccp/regs/compliance/posters/pdf/OFCCP_EEO_Supplemen
t_Final_JRF_QA_508c.pdf
You should post your company’s EEO statement.
Minimum EEO Required Tag Line:
EO Employer – M/F/Vets/Disabled, or EO Employer – Veterans/Disabled
and other protected categories
Methods for contacting employer:
Applicants with disabilities must either be able to use your online system
or submit an application in a timely manner through alternative means –
facsimile, email, phone call. This includes providing a means to contact
the contractor, other than through the online system, to request a
reasonable accommodation needed to apply and be considered for the
contractor´s jobs. Fax lines and email addresses must be attended to in
a timely fashion.
Required Language/Posters
Browning-Ferris Industries of California
NLRB Decision of August 27, 2015
“...Two or more entities are joint employers of a single workforce if (1) they are both employers within the meaning of the common law; and (2) they share or codetermine those matters governing the essential terms and conditions of employment. In evaluating whether an employer possesses sufficient control over employees to qualify as a joint employer, the Board will – among other factors -- consider whether an employer has exercised control over terms and conditions of employment indirectly through an intermediary, or whether it has reserved the authority to do so.”
Compensation Manager Interviews
During OFCCP Audit
In the event of an audit, the OFCCP may review a contractor’s compensation
records to search for pay disparity. During this investigation, the OFCCP may
conduct a compensation manager interview.
Federal contractors are required to analyze their compensation policies
annually. Compensation managers should conduct pay analyses each year,
familiarize themselves with the results, and address any issues before an
audit takes place. When prepared by an expert consultant, an analysis should
be requested, maintained and managed by your attorney as an attorney-
client privileged document. Otherwise, the OFCCP may be entitled to obtain
the analysis and any adverse information it contains during the audit or
compensation manager interview. See Scott v. Chipotle Mexican Grill, S.D.N.Y.
1:12-cv-08333.
Quiz – Pay Transparency
1. An Accounting Clerk learns, while preparing
payroll reports, that several female co-workers received smaller
salary increases than male employees with the same job duties.
Can the Accounting Clerk be rightfully disciplined for sharing that
information with his female co-workers?
2. If the Accounting Clerk shares information
regarding his own compensation with a fellow employee, could
he be rightfully disciplined by the Company?
3. If an Administrative Assistant finds a payroll
report left on an office copier by the Accounting Clerk, and
discusses compensation information she learns from that report
with her co-workers, could she be rightfully disciplined for sharing
that information?
Quiz – Paid Sick Leave
4. If an employee who separated from the covered
contractor is rehired six months later, is she entitled to the sick
leave she had not used before she terminated?
5. If a covered contractor has a policy providing 14
days per year of paid time off, regardless of the reason for the
absence, is that sufficient to be in compliance with EO 13706?
6. Is there a minimum amount of paid sick leave
that can be carried over from one year to the next?
Quiz – Random!
7. If 10% of your current workforce is composed of
protected veterans, do you have a recruiting benchmark for
protected veterans in 2017?
8. If your company has 75 employees, and 5% of
your workforce has self-identified as being disabled, do you have a
recruiting goal for individuals with disabilities in 2017?
9. Should you prepare your company’s
compensation analysis in-house?
10. Are you required to post the EEO is the Law
poster, or its supplement, on your company website?
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