OFCCP Proposes New Regulations on Pay Transparency
WASHINGTON – The U.S. Department of Labor’s Office of Federal Contract Compliance Programs today announced a proposed rule that would prohibit federal contractors from maintaining pay secrecy policies. Under the terms of the proposal, federal contractors and subcontractors may not fire or otherwise discriminate against any employee or applicant for discussing, disclosing or inquiring about their compensation or that of another employee or applicant.
“Workers cannot solve a problem unless they are able to identify it. And they cannot identify it if they aren’t free to talk about it without fear of reprisal,” said OFCCP Director Patricia A. Shiu. “Pay transparency isn’t just good for workers. It’s good for business. Fairness and openness are great qualities for a company’s brand.”
President Obama signed Executive Order 13665 on April 8, instructing the secretary of labor to propose a rule within 160 days to require pay transparency among federal contractors. The proposed rule, available for public inspection today, would amend the equal opportunity clauses in Executive Order 11246 to afford protections to workers who talk about pay. It would also add definitions for compensation, compensation information, and essential job functions, terms which appear in the revised clauses. The proposal also establishes two types of defenses that contractors can use against allegations of discrimination under EO 13665.
The rule will be published in the Sept. 17 issue of the Federal Register and open for public comment for 90 days. To learn more about the proposed rule, please visit www.dol.gov/ofccp/PayTransparencyNPRM.
New OFCCP Directive on Gender Identity Discrimination
On August 19, 2014, OFCCP published the following announcement:
On June 30, 2014, the Secretary announced that DOL is updating its enforcement protocols and nondiscrimination guidance to reflect that DOL provides the full protection of the federal nondiscrimination laws that it enforces to individuals with claims of gender identity and transgender status discrimination. In accordance with this announcement, as well as with the EEOC’s decision in Macy v. Holder and the Title VII case law on which it is based, DIR 2014-02 clarifies that under Executive Order 11246, as amended, discrimination on the basis of sex includes discrimination on the bases of gender identity and transgender status.
The directive reaffirms that in compliance evaluations and complaint investigations, OFCCP fully investigates and seeks to remedy instances of sex discrimination that occur because of an individual’s gender identity or transgender status. The directive explains that, when investigating such instances of potential discrimination, OFCCP adheres to the existing Title VII framework for proving sex discrimination, as outlined in OFCCP’s Federal Contract Compliance Manual.
DIR 2014-02 takes effect immediately. It does not address gender identity or sexual orientation as “stand-alone” protected classes as called for under Executive Order 13672.
The directive is available at http://www.dol.gov/ofccp/regs/compliance/directives/dir2014_02.html.
OFCCP Proposes New Equal Pay Report
On August 6, 2014, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs issued a Notice of Proposed Rulemaking requiring covered federal contractors and subcontractors with more than 100 employees to submit an annual Equal Pay Report on employee compensation. The rule will be published shortly in the Federal Register. After publication, there will be a 90-day comment period.
The data will enable OFCCP to direct its enforcement resources toward federal contractors whose summary data suggests potential pay violations, while reducing the likelihood of reviewing companies that are less likely to be out of compliance. OFCCP will also release aggregate summary data on the race and gender pay gap by industry and EEO-1 category to enable contractors to review their pay data using the same metrics as OFCCP and take voluntary compliance measures. By using existing reporting frameworks contractors already maintain in electronic payroll records, including W-2 earnings, and the longstanding categories and definitions that apply to the EEO-1 Report, the agency is avoiding costly new recordkeeping requirements and minimizing to the extent feasible the compliance burden on federal contractors and subcontractors.
According to the proposal, covered employers would submit electronically three pieces of information related to employee compensation:
The total number of workers within a specific EEO-1 job category by race, ethnicity and sex;
Total W-2 wages defined as the total individual W-2 wages for all workers in the job category by race, ethnicity and sex; and
Total hours worked, defined as the number of hours worked by all employees in the job category by race, ethnicity and sex.
To find out more, go to: http://www.dol.gov/ofccp/EPR.html
How OFCCP Schedules Compliance Evaluations
OFCCP has recently released a set of Frequently Asked Questions regarding their compliance evaluation scheduling process. The FAQ’s cover: scheduling cycles, number of companies and establishments to be evaluated, the selection process and more. Find out more: http://www.dol.gov/ofccp/regs/compliance/faqs/fcssfaqs.htm
Disability Self-Identification Form Finalized
As part of their new regulations implementing Section 503 of the Rehabilitation Act, OFCCP has published the required form for soliciting voluntary self-identification of a disability. Covered federal contractors and subcontractors will need to begin using the form by the start of their next Affirmative Action Program cycle after 3/24/2014. To view the form, click here: http://www.dol.gov/ofccp/regs/compliance/sec503/Voluntary%20Self-Identification%20of%20Disability%20CC-305%20Final_QA_508c.pdf
OFCCP Updates Resources for Employing Veterans and Individuals with Disabilities
As a part of OFCCP's ongoing efforts to support federal contractor compliance with the new Section 503 of the Rehabilitation Act (Section 503) and the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) regulations, the agency has providing the additional resources that federal contractors may find useful. Find out more: http://www.dol.gov/ofccp/regs/compliance/Resources.htm