To ensure “that the parties that contract with the Federal Government provide adequate COVID-19 safeguards to their workers performing on or in connection with a Federal Government contract,” President Biden has issued yet another executive order (EO) mandating that some federal contractors and subcontractors comply with Guidance published by the Safer Federal Workforce Task Force.
On September 1, 2021, the Office of Federal Contract Compliance Programs (OFCCP) published its Corporate Scheduling Announcement List (CSAL) identifying 400 construction federal contractors and federally assisted contractors and subcontractors for fiscal year 2021 (FY 2021), which runs from October 1, 2021, through September 30, 2022.
At long last, on August 31, 2021, the Office of Management and Budget (OMB) approved the new system that the Office of Federal Contract Compliance Programs (OFCCP) developed for federal contractors to submit affirmative action programs (AAPs). The Affirmative Action Program Verification Interface (AAP-VI) is designed to provide covered federal contractors a method of entering, tracking, and submitting AAPs for review by OFCCP.
On August 18, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) announced that the prior August 23, 2021, EEO-1 filing deadline for the 2019 and 2020 EEO-1 reports has been moved to October 25, 2021. The EEOC cited the “continuing impact of the pandemic on business operations” as the justification for this two-month extension of the earlier deadline.
On July 22, 2021, the U.S. Department of Labor (DOL) published a notice of proposed rulemaking to outline the standards and procedures that it will use to administer President Joe Biden’s Executive Order 14026, which he signed on April 27, 2021. Executive Order 14026 proposed an increase to the minimum wage for workers performing work on federal contracts to $15 per hour beginning January 30, 2022. The proposed rule applies only to federal contractors. It builds upon Executive Order 13658 signed by then-president Barack Obama that established a minimum wage of $10.10 for federal contractors with annual increases for inflation. The current rate is $10.95 per hour; the minimum wage for tipped federal contract workers is $7.65 per hour. Below is a brief summary of the scope of the DOL’s proposed rule and changes, if finalized.
The U.S. Equal Employment Opportunity Commission (EEOC) recently announced that it is loosening the requirement on companies to provide notice to the federal agency of acquisitions, mergers, and spinoffs. By way of background, in addition to requiring the submission and certification of two years of EEO-1 reports, the EEOC had created a new filing platform for the 2019 and 2020 EEO-1 filings, which are due by August 23, 2021. The transition to the new platform and the requirement to file two years of EEO-1 reports has resulted in a rocky EEO-1 filing cycle. As a continued sign of these difficulties, the EEOC implemented a major change to the procedure for handling mergers, acquisitions, and spinoffs for EEO-1 reporting.
On July 1, 2021, the Office of Federal Contract Compliance Programs (OFCCP) published a Corporate Scheduling Announcement List (CSAL identifying 750 Supply and Service establishment-based full compliance evaluations, Corporate Management Compliance Evaluations, Functional Affirmative Action Program (FAAP) Reviews and University Reviews. OFCCP is not required by law to publish the CSAL, and the CSAL is distinct from the scheduling letter, which is the Office of Management Budget’s (OMB) approved letter “sent to an establishment to start the compliance evaluation process.”
On June 28, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) announced that it is extending the July 19, 2021, deadline to submit and certify 2019 and 2020 EEO-1 Component 1 reports to Monday, August 23, 2021. The EEOC still “encourage[s] eligible employers to file the required EEO-1 Component 1 report(s) as soon as possible.
Many workplace leaders have been wondering, “Can we require employees to get the COVID-19 vaccine as a condition of employment?” According to a recent Ogletree Deakins benchmarking survey, most employers are not ready to implement mandatory vaccination policies, and 87.9 percent of employers reported that they currently do not plan to require workers to get the vaccine. On the other end of the spectrum, 7.6 percent of respondents have implemented (or are planning to implement) a vaccination mandate. The rest have been undecided, but a recent court opinion on the legality of such mandatory policies may shift some employers’ feelings about which direction they should go and when.
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 30, 2021, the Office of Federal Contract Compliance Programs (OFCCP) announced that the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA) hiring benchmark for 2021 would be 5.6 percent. This is a 0.1 percent reduction from the 5.7 percent benchmark in 2020—making it the seventh reduction of the benchmark since its inception in 2014.
Now that the inauguration has passed and the Biden administration has begun its work, it is a good time for retailers to take stock of the labor and employment issues that are likely to assume prominence in 2021, and to consider preparing to meet the challenges each of these issues pose. In no particular order, below are the top 10 issues that are likely to keep retail employers up at night in 2021.
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.
Despite a global pandemic, the Office of Federal Contract Compliance Programs (OFCCP) kept an unrelenting pace of activity in 2020. Below are the highlights from the year, and a summary of what federal contractors and subcontractors need to know.
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.
Some anticipate that President-elect Joseph Biden will revoke the Trump administration’s Executive Order (EO) 13950 that restricts the content of certain diversity-related workplace trainings. On December 22, 2020, the United States District Court for the Northern District of California issued a nationwide preliminary injunction in the case of Santa Cruz Lesbian and Gay Community Center d/b/a The Diversity Center of Santa Cruz v. Trump, holding that the plaintiffs had demonstrated (among other things) a sufficient likelihood of success on their claims that EO 13950 is unconstitutional on its face. The order, which went into effect immediately and on a nationwide basis, allows private federal contractors and federal grant recipients to conduct workplace training programs and related activities without facing penalties for “stereotyping” or “scapegoating” under EO 13950. While the injunction does not impact trainings provided to federal employees, on December 22, 2020, a group of U.S. Department of Justice (DOJ) employees circulated a letter calling for an official investigation into EO 13950 and related executive branch actions targeting diversity-and-inclusion programs.
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 30, 2020, California Governor Gavin Newsom signed California Senate Bill 973 into law as Government Code Title 2, Division 3, Part 2.8, Chapter 10, § 12999. The bill authored by Senator Hannah-Beth Jackson (Santa Barbara) is titled “Employers: annual report: pay data,” and it states that while “progress [has been] made in California in recent years to strengthen California’s equal pay laws,” there is still a significant gender pay gap and for women of color that pay gap is greater. To address these pay issues, the California Government Code’s new section 12999 requires pay data reports from covered employers and delegates additional powers to the California Department of Fair Employment and Housing relating to the new pay data reporting requirement. Section 12999 requires covered employers to file pay data reports no later than March 31, 2021, and on or before every March 31 thereafter.
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.
On August 3, 2020, the Trump Administration issued an executive order (EO) directing the secretaries of the Departments of Labor and Homeland Security to “take action … to protect United States workers from any adverse effects on wages and working conditions caused by the employment of H-1B [workers].”
In August 2018, the Office of Federal Contract Compliance Programs (OFCCP) informed the contractor community of its intent to conduct compliance reviews focused solely on the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA) regulations. Since Directive 2018-04 was published, OFCCP released its 2019 Corporate Scheduling Announcement Letter (CSAL) supplement, which identified 500 contractor establishment locations for future VEVRAA focused reviews.