The first part of this two-part blog series focused on the Biden administration’s first 100 days and reviewed the administration’s legislative plans. The second part of the series addresses policy developments occurring at the executive branch agencies and independent agencies.
April 30, 2021, marked President Joe Biden’s 100th day in office, and his administration has wasted little time advancing its policy priorities. At this moment, the administration is focusing most of its attention on repealing much of the policy accomplishments of the previous administration but can be expected to advance its own proposals in short time. Additionally, Democrats in the U.S. House of Representatives are looking for ways around the U.S. Senate’s legislative filibuster in order to advance their ambitious legislative agenda. Below is a very brief outline of the major labor and employment legislative actions of President Biden’s first 100 days.
On April 27, 2021, President Joe Biden signed a new executive order (EO) requiring federal contractors and subcontractors to pay a $15.00 minimum wage to the thousands of workers who are working on or in connection with federal contracts. The new EO, titled “Executive Order on Increasing the Minimum Wage for Federal Contractors,” requires contractors to implement the higher minimum wage requirements by early 2022.
After the U.S. Equal Employment Opportunity Commission (EEOC) delayed the collection of 2019 EEO-1 Component 1 data, April 26, 2021, now marks the opening of the 2019 and 2020 EEO-1 Component 1 filing site. The EEOC had extended the data collection period from the usual 10 weeks to 12 weeks, resulting in a July 19, 2021, filing deadline.
Due to the COVID-19 pandemic, on May 7, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) delayed the 2019 EEO-1 Component 1 data collection. On March 29, 2021, the EEOC announced that the 2019 and 2020 Component 1 data collection would open on Monday, April 26, 2021.
On March 11, 2021, President Joe Biden signed into law the American Rescue Plan Act of 2021—a $1.9 trillion economic relief package. While the legislation marks the first major legislative victory for President Biden and the administration, it is the sixth federal legislative relief package aimed at addressing the COVID-19 pandemic and its economic fallout. The legislation continues some programs established in these previous efforts, but it also adds some important components. Set forth below are some of the major provisions of the American Rescue Plan Act.
President Joseph R. Biden Jr.’s flurry of executive actions upon his inauguration into office signals diversity, equity, and inclusion (DE&I) as a significant area of focus for the administration. As of January 26, 2021, President Biden has signed a total of more than 40 executive orders and actions aimed at addressing and reversing some of the most controversial orders of the prior administration, including a number of actions addressing DE&I matters. One of these—Advancing Racial Equity and Support for Underserved Communities Through the Federal Government (Executive Order (EO) 13985)—includes the much-anticipated revocation of EO 13950’s ban on diversity training content for federal agencies, contractors, and grant recipients.
Joseph R. Biden Jr. was sworn in as the 46th president of the United States on January 20, 2021. President Biden hit the ground running, issuing 17 executive orders, proclamations, memoranda, and similar actions on his first day. Many of these presidential actions have impacts that go beyond the day-to-day activities of the workplace, but employers may still want to have an understanding of these policy changes. Set forth below is a summary of the actions that President Biden took on his first day in office.
According to the Office of Federal Contract Compliance website’s leadership team page, Jenny Yang has replaced Craig Leen as director of the agency. Yang previously served on the U.S. Equal Employment Opportunity Commission (EEOC) from 2013 to 2018 and served as a commissioner, vice chair, and chair for the agency (the latter from 2014 to 2017). Yang spearheaded the EEOC’s drive to collect pay data from private employers as part of the EEO-1 report.
The U.S. Equal Employment Opportunity Commission (EEOC) issued a press release on January 12, 2021, notifying EEO-1 filers that the EEO-1 filing platform will not open until April 2021. This is of particular interest for employers because the EEOC delayed the 2019 EEO-1 filings, which would normally have been due in March 2020, due to the COVID-19 pandemic—meaning that both the 2019 and 2020 EEO-1 filings will be due this year.
Federal contractors and subcontractors have numerous affirmative action obligations and only so much time each day to devote to compliance. As a result, some requirements may tend to fall by the wayside as contractors focus on the more critical issues of ensuring equal employment opportunities in matters such as hiring, promotions, and pay. Even the smallest of the technical regulatory obligations, however, are important and serve a purpose—and, in fact, they can significantly enhance contractors’ affirmative action efforts by requiring regular, critical review and analysis of personnel practices.
Since September 22, 2020, when President Donald J. Trump signed an executive order (EO) titled “Executive Order on Combating Race and Sex Stereotyping,” the Office of Federal Contractor Compliance Programs (OFCCP) rolled out several sources to provide guidance to federal contractors and subcontractors and other stakeholders on what to expect next.
On September 22, 2020, President Donald Trump signed an executive order titled “Executive Order on Combating Race and Sex Stereotyping.” The executive order follows a September 4, 2020, memorandum from Russell Vought, director of the Office of Management and Budget, and introduces requirements for government contractors conducting diversity and inclusion (D&I) trainings. It is clear from the order that covered contracts, subcontracts, and grants with the U.S. federal government must control for specific language related to workplace trainings, but the order otherwise lacks guidance about changes covered contractors must make when training on D&I issues.
The Office of Federal Contract Compliance Programs (OFCCP) recently announced that 2,250 supply and service contractor establishments would be scheduled for compliance reviews. OFCCP has identified 1,000 of these reviews as promotions and accommodations focused reviews (i.e., 500 promotions focused reviews and 500 accommodations focused reviews).
On September 11, 2020, the Office of Federal Contract Compliance Programs (OFCCP) published a Corporate Scheduling Announcement List (CSAL) of “Supply & Service” contractors and subcontractors and, for the first time, a CSAL of construction contractors identified for potential compliance evaluations to its Freedom of Information Act (FOIA) Library.
While the U.S. Equal Employment Opportunity Commission (EEOC) postponed the 2019 EEO-1 filing deadline due to the COVID-19 pandemic, the Veterans’ Employment and Training Service (VETS), which is in charge of the VETS-4212 filings, has taken no such action—which means that government contractors may want to begin preparing promptly for the September 30, 2020, filing deadline.
On July 16, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) announced that it had unanimously voted to fund a statistical study of the EEO-1 Component 2 data collected for 2017 and 2018. This additional EEO-1 data collection ordered by a federal district judge required employers to file reports showing employee pay and hours-worked information for 2017 and 2018.
The Equal Employment Opportunity Commission (EEOC) recently announced a pair of major changes to the EEO-1 filing process. The most recent was on May 7, 2020, when the EEOC announced that due to the COVID-19 pandemic it was filing a notice in the Federal Register delaying collection of the 2019 EEO-1 report this year and requesting approval to collect both 2019 and 2020 EEO-1 data beginning in the first quarter of 2021.
On May 8, 2020, the Office of Federal Contract Compliance Programs (OFCCP) announced an August 4, 2020, deadline for federal contractors and subcontractors to implement a new disability self-identification form to use when soliciting disability status from applicants and employees.
The Office of Federal Contract Compliance Programs (OFCCP) announced the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA) hiring benchmark for 2020. Effective March 31, 2020, the hiring benchmark will be 5.7 percent, down from 5.9 percent in 2019—marking the sixth reduction of the benchmark since its inception in 2014.
In an effort to facilitate response efforts for COVID-19, Director Craig Leen of the Office of Federal Contract Compliance Programs (OFCCP) announced that it is issuing a national interest exemption on March 17, 2020, to new supply and service and construction contracts entered into from March 17, 2020, through June 17, 2020.
Under the president’s new budget, certain federal contractors would not be required to submit a VETS-4212 report in the year following receipt of a HIRE Vets Medallion Award.
On October 11, 2019, the Office of Federal Contract Compliance Programs (OFCCP) published to its website the long-awaited Educational Institutions Technical Assistance Guide (TAG).
On October 3, 2019, the Office of Federal Contract Compliance Programs (OFCCP) published a notice in the Federal Register proposing changes to the required voluntary self-identification form that all federal contractors and subcontractors use when soliciting disability status from applicants and employees.
On August 15, 2019, the Equal Employment Opportunity Commission (EEOC) added a question and answer to its list of frequently asked questions (FAQs) addressing, among other things, a growing concern for many employers: how to report employees who identify as nonbinary in the EEO-1 Component 2 report.
On August 15, 2019, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) released a Notice of Proposed Rulemaking (NPRM) focused on clarifying the civil rights protections for religious organizations that have federal contracts.
The Office of Federal Contract Compliance Programs (OFCCP) announced on Friday, August 9, 2019, the appointment of Marcus Stergio to fill the ombudsman role in the agency’s national office. Stergio has varied experienced in dispute resolution and holds both a master’s degree in conflict resolution from the University of Massachusetts Boston and participated in Harvard Law School’s Program on Negotiation. Stergio’s role with the agency is to facilitate the resolution of disputes raised by contractors and other stakeholders, in conjunction with regional and district OFCCP offices.