In this blog, PilieroMazza’s Labor & Employment attorney Sara Nasseri summarizes important takeaways for government contractors from the National Industry Liaison Group (NILG) Conference in July, which focuses on developments and updates surrounding EEO, affirmative action, HR compliance and diversity and inclusion issues. Described below are key priority items for the OFCCP and the EEOC, as well as updates to state laws impacting government contractors in 2022 and beyond. Also, please visit this link to register for PilieroMazza’s upcoming webinar detailing these changes and how to prepare for them.
Office of Federal Contract Compliance Programs (OFCCP)
With its new leadership team, government contractors should expect many changes to come from the OFCCP. Director Jenny Yang summarized the agency’s key priorities at the NILG Conference to include hiring and training new staff and returning to onsite audits where needed (especially for construction contractors). As part of this renewed effort to strengthen enforcement activity, Director Yang previewed some of the steps the OFCCP intends to take in the near future:
- Focus compliance evaluations on industries experiencing substantial growth during the COVID-19 pandemic, including those industries that are expected to receive significant federal investment for infrastructure;
- Combat pay discrimination by underscoring the agency’s focus on pay equity as evidenced by the agency’s issuance of Directive 2022-01;
- Adopt a stricter stance on overall compliance and enforcement measures, including rescinding of automatic extensions in submitting responses to scheduling letters as evidenced by the agency’s issuance of Directive 2022-02;
- Provide contracting agencies with a list of all federal contractors that are not in compliance and have not certified on the AAP portal. Contractors who fail to certify should expect to be scheduled for review;
- Consider collection of data on gender nonbinary information to stay consistent with state and local laws.
For a more detailed analysis of the steps the OFCCP has taken to date and a summary of its heightened enforcement efforts, please visit PilieroMazza’s prior blog on the topic here. OFCCP’s new leadership team continued to emphasize its renewed focus on enforcement by showcasing some of its settlement statistics in the past year, including completion of over 680 compliance reviews, execution of over 80 non-financial conciliation agreements, and almost $10 million in retrieved backpay. It’s safe to say government contractors should ensure that compliance with OFCCP’s rules and regulations is top of mind and that it’s important to ensure that time, budget, and resources are set aside to prepare for the potential of an audit.
Equal Employment Opportunity Commission (EEOC)
Similar to the OFCCP, the EEOC is ramping up their enforcement efforts. EEOC’s Vice Chair, Jocelyn Samuels, discussed some of the EEOC’s priorities that government contractors should take note of. Of course, COVID continues to be an issue and the EEOC is seeing a number of cases stem from COVID-related issues, including companies’ failure to accommodate as it relates to both vaccine policies and illness due to COVID. The agency is also seeing an increase in the number of religious accommodation requests and denials that were filed with the EEOC in relation to vaccine mandates. Vice Chair Samuels also spoke of forthcoming harassment guidance by the EEOC to ensure that employers are taking adequate – and appropriate – protocols to prevent and address harassment in the workplace.
Vice Chair Samuels also previewed the release of the long-awaited National Academy of Sciences (NAS) report on the EEOC’s Pay Data Collection, which was completed in 2020. By way of background, in a historic first, the EEOC collected 2017 and 2018 pay data from certain private employers and federal contractors in February 2020. Several months after the pay data (Component 2) upload portal closed, the EEOC asked the NAS to review how to use the data employers provided and recommend ways to improve future collection. Poetically (or not!), the study was released on the last day of the NILG Conference on July 28. Over 280 pages long, the study is a dense read but essentially concludes by agreeing with the EEOC and confirming that “pay data collection is a key tool to fight discrimination.” That said, the study does note that the process of collection, as well as the actual data to be collected, had flaws and recommends the EEOC engage in a trial to field test the process if decides to roll out a nationwide data collection tool. Of course, this will impact many government contractors who are required to file their EEO-1 reporting on an annual basis and continues to underscore the agency’s focus on pay equity.
Lastly, among the many seminars presented at the NILG Conference, one of the sessions involved the discussion of multi-state laws and contractors’ hurdles in navigating those laws. It should not come as a surprise that state and local governments are continuing to pass laws that impact multi-jurisdictional contractor workforces. Most significantly, penalties for noncompliance with some of these state laws can be substantial, further underscoring the need for employers to stay well-informed of where their employees are located (including remote workers) and remain familiar with applicable local and state laws. By way of example, Colorado recently passed the Equal Pay for Equal Work Act, which can hold employers in Colorado who do not include pay and benefit information with each job opening, liable for penalties ranging anywhere from $2,000 to $35,000. The patchwork of state laws not only include pay equity laws, but also laws pertaining to paid sick leave, regulations surrounding artificial intelligence, and anti-harassment trainings.