OFCCP Web Chat Discusses Upcoming Regulatory Activity, Including Possible Changes to Compensation Analysis

During Friday’s online chat to discuss the Office of Federal Contract Compliance Programs’ (OFCCP) regulatory agenda, Director Patricia Shiu spent a significant amount of time fielding questions about possible changes to the agency’s compensation data analysis methods. Recently, the agency issued a proposed rescission of its interpretive standards and voluntary guidelines regarding the analysis of compensation data. Shiu acknowledged that the agency is “taking a much stronger approach to enforcement on compensation discrimination, as part of our effort to, once and for all, end the wage gap between men and women.” To that end, the agency plans to publish next month an advance notice of proposed rulemaking (ANPRM) to solicit public comments about developing a new compensation tool to help the OFCCP better collect data about wages. In addition, the OFCCP will hold a series of stakeholder meetings to gather information regarding ways to analyze compensation.

In the meantime, Shiu explained that if the compensation data voluntary guidelines are rescinded, contractors will still be obliged to conduct self-evaluations of compensation practices. If the compensation standards are rescinded, Shiu said the OFCCP will establish investigation procedures similar to those used for investigations of other types of discrimination. According to Shiu, the OFCCP will use “Title VII principles” when conducting investigations of compensation discrimination. She did not elaborate on what constitutes such principles.

Another area of discussion focused on the OFCCP’s intent to issue a proposed rule by July 2011 that would amend the construction contractor affirmative action regulations. According to Shiu, the agency is “seriously considering amending the construction regulations to remove outdated regulatory provisions and propose new methods for establishing affirmative action goals that reflect the realities of the labor market and employment practices in the construction industry today.” Such a proposal would focus on recruitment and job training.

Shiu also answered questions with regard to the agency’s plan to issue a proposed rule by August 2011 on the affirmative action and nondiscrimination obligations of contractors and subcontractors under Section 503 of the Rehabilitation Act. Specifically, Shiu said the NPRM will propose that federal contractors and subcontractors increase linkages and conduct more substantive analyses of recruitment and placement actions taken under Section 503.

The OFCCP’s regulatory agenda also includes plans to issue a proposed rule this month to revise regulations addressing the recruitment and placement of veterans under the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA).

Other highlights of the chat include the following:

  • The OFCCP hopes to release new guidance on the Functional Affirmative Action Plan (FAAP) within the next 60 days.
  • Shiu said that the OFCCP will not reissue the old Equal Opportunity (EO) Survey, but is instead focusing on the development of a new compensation data collection tool.
  • At this time, there are no anticipated changes to the scheduling letter, although there could be changes based on public response to the compensation data tool ANPRM.
  • In response to whether the OFCCP intends to continue issuing Corporate Scheduling Announcement Letters (CSAL), which the OFCCP provides to companies with two or more establishments on its neutral scheduling list, Shiu indicated that this practice will continue during FY 2011, with the next round to be sent in the Spring.
  • With respect to the OFCCP’s involvement with the new Office of Women and Minority Inclusion established by the Dodd-Frank financial reform bill, Shiu stated that the OFCCP has held introductory meetings with several of the agencies involved and “anticipates ongoing communication, coordination, and collaboration to ensure consistency in approaches and avoid duplication of efforts.”

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.