Pay Transparency and You: OFCCP Issues Final Rule

This month, the Office of Federal Contracts Compliance Programs (OFCCP) issued its final rule on Executive Order 13665, otherwise known as pay transparency. The regulations will become effective January 11, 2016.

What Does This Mean?

With the Order in place, federal contractors will be prohibited from discriminating against employees, and even applicants, who enquire about or discuss compensation. The requirements will apply to all contractors and subcontracts covered by the non-discrimination and affirmative action provisions of Executive Order 11246. This includes contractors who are not required to develop written Affirmative Action Plans.

Who Qualifies as a Federal Contractor?

According to federal guidelines, an organization meets the “federal contractor” criteria if it:

– has a single federal contract, subcontract, or federally assisted construction; or
– has federal contracts or subcontracts that, combined, are worth more than $10,000 in    any 12-month period; or
– has government bills of lading; or
– serves as a depository of federal funds; or
– is an issuing and/or paying agency for U. S. Savings Bonds and notes in any amount.

The Final Rule will apply to contracts entered into or modified on or after January 11th of next year. (Contracts are considered “modified” if there is any alteration in their terms and conditions, including supplemental agreements and extensions).

What is Protected?

Under the new rule, employees cannot be disciplined for asking about or discussing their own or other employees’ pay and benefits. Applicants cannot be discriminated against for asking about or discussing employees’ compensation.

Equal Opportunity Clause Changes

The Equal Opportunity Clause has been revised to include the following language:

“The contractor will not discharge or in any manner discriminate against any employee or applicant for employment because such employee or applicant has enquired about, discussed, or disclosed the compensation of the employee or applicant or applicant has enquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant . . .”

This non-discrimination provision does not apply if the employee has access to the employer’s compensation information as part of h/her job responsibilities.

Other revised language includes:

“This provision shall not apply to instances in which an employee who has access to the compensation information of other employees or applicants as part of such employee’s essential job functions discloses the compensation of such other employees or applicants to individuals who do not otherwise have access to such information, unless such disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or is consistent with the contractor’s legal duty to furnish information.”

Other Modifications

The OFCCP modified its proposed definition of “essential job functions” in a way that benefits contractors. Under the proposed definition, a contractor would have violated the provision if it had disciplined an employee who had authorized access to compensation information, but such access was not a “fundamental” part of the employee’s job responsibilities.

In response to concerns expressed by the contractor community, the Final Rule defines a job function as essential if:

– the access to compensation information is necessary in order to perform that function or another routinely assigned business task; or
– the function or duties of the position include protecting and maintaining the privacy of employee personnel records, including compensation information.

The Main Issue

The OFCCP recognized the main issue as whether an employee has authorized access to compensation information rather than the importance of that access in performing the job.

How is Compensation Defined?

Under this rule, compensation is defined as “any payments made to, or on behalf of, an employee or offered to an applicant as remuneration for employment, including, but not limited to, salary, wages, overtime pay, shift differentials, bonuses, commissions, vacation and holiday pay, allowances, insurance and other benefits, stock options and awards, profit sharing and retirement.”

Compensation information is defined as “the amount and type of compensation provided to employees or offered to applicants, including, but not limited to, the desire of the contractor to attract and retain a particular employee for the value the employee is perceived to add to the contractor’s profit or productivity, the availability of employees with like skills in the marketplace; market research about the worth of similar jobs in the relevant marketplace; job analysis, descriptions, and evaluations; salary and pay structures; salary surveys; labor union agreements; and contractor decisions, statements and policies related to setting or altering employee compensation.”

Can Contractors Defend Against Alleged Retaliation?

As long as the defense is not based on a policy that prohibits, or tends to prohibit, employees or applicants from discussing compensation, contractors do have a defense against claims alleging retaliation for discussing compensation. A contractor can take advantage of this defense by showing that it has consistently and uniformly disciplined similarly situated employees. Also, the “essential job functions defense,” which the OFCCP describes as a “complete defense,” provides protection to contractors who take adverse action against an employee who has access to compensation information and discloses the information to individuals who do not otherwise have access to it. The employee’s disclosure, however, would still be protected if it was “in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the contractor, or is consistent with the contractor’s legal duty to furnish information.”

Must Contractors Provide Notice?

Contractor must use language prescribed by the OFCCP when notifying applicants and employee of their rights. This mandatory language must be included in existing employee handbooks or other manuals, and must be posted electronically or in conspicuous places. The OFCCP will also be updating the “EEO is the Law” poster to include this notice.

Disclaimer: I am not a licensed attorney. My blogs are based on my own experiences, interviews (where credited), and loads of research, and do not represent legal advice.

Pay Transparency and You: OFCCP Issues Final Rule

15 Employment and Labor Resolutions for 2015, part 2 of 3

In the second part of the series of resolutions everyone should make to keep their human resource department running smoothly — and legally, we have five more entries:

 6. Audit your wage-hour compliance. Unintentional overtime and wage-hour law violations have a new name in many quarters: “wage theft.” Federal and state agencies and plaintiff’s lawyers, sometimes encouraged by labor unions and their affiliate groups, are saying “show me the money” and finding it. In addition, the U.S. Department of Labor has said that it will attempt to narrow the white-collar exemptions this year. (Although the DOL says the changes will not be drastic, they are expected to be drastic). Among other things, a good wage-hour audit will include ensuring that lower-wage employees are getting at least the applicable minimum wage; that employees are not being required or “pressured” to work off the clock, or “winked at” when they do so; that the employees classified as “exempt” really are; and that any “independent contractors” really are (see also Resolution No. 1). Be sure that the review includes compliance with applicable state and local minimum wage laws, too. Many states now have a higher minimum wage than the Fair Labor Standards Act rate.

7. Update your EEO/no-harassment policies, and get that training done! In just the past year, the EEOC has taken the position that pregnancy and related conditions (including lactation) must be reasonably accommodated. The EEOC and the Office of Federal Contract Compliance Programs, which enforces the affirmative action laws that apply to federal contractors, both agree that “gender identity” is a protected category and that discrimination based on sexual orientation or gender identity violates Title VII. Do your policies reflect this? Do your employees know the new rules? Do victims of harassment and discrimination know that they have recourse?

8. Review your use of criminal background and credit information in hiring decisions. Many state and local laws prohibit employers from asking about criminal history on employment applications, and the EEOC has taken an aggressive position on the use of criminal or credit information in making employment decisions. You can still get this information, but are you getting it properly? If you find that an individual has a criminal or credit problem, are you making the required “individualized analysis” that takes into account, among other things, the nature of the conviction, the years that have passed, and the particular position for which the individual is applying? Did you grab some “canned” rules from a website, or are your rules customized to fit your industry, your workforce, and the people you serve?

9. If you’re a federal contractor, make sure you are up to date on all of the OFCCP’s new requirements. For example, the new requirement that you prohibit discrimination or harassment based on gender identity. The new minimum wage (applicable to some, but not all, federal contractors). The new scheduling letter and itemized listing. The proposed rule prohibiting employers from requiring that employees avoid discussing their pay. The rule requiring employers to “air their dirty linen” by disclosing certain violations of federal labor and employment laws. The new rule on disability discrimination/accommodation and veterans. (“Perform compensation analysis” is another good resolution if you haven’t done one lately).

10. Make sure you’re in compliance with the new injury and illness reporting requirements under the Occupational Safety and Health Act, which took effect on January 1. (Reported on this new rule back in September).

 Check back next week for the last installment of the 15 resolutions.

Disclaimer I am not a licensed attorney. My blogs are based on my own experiences, interviews (where credited), and loads of research and do not represent legal advice.

15 Employment and Labor Resolutions for 2015, part 2 of 3

OFCCP Releases Final Rule on LGBT Non-discrimination

The Office of Federal Contract Compliance Programs announced this month that it is issuing a Final Rule that implements President Obama’s Executive Order that prohibits federal contractors from discriminating on the basis of sexual orientation and gender identity.

This Final Rule will be effective 120 days after publication in the Federal Register (which has not yet occurred) and will apply to federal contracts entered into or modified on or after that date.

What does the Final Rule change?

The EO Clause has been changed to include “sexual orientation” and “gender identity.” Those contractors who incorporate the EO clause by reference, however, will not need to physically alter their subcontracts or purchase orders.

Contractors must notify applicants and employees of their non-discrimination policy by posting the “EEO is the Law” poster. Presumably, the government will be updating this poster to include these two new categories.

Contractors are also obligated to expressly state in job advertisements that all qualified candidates will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin. The Final Rule provides that employers can satisfy this requirement by including that verbiage or simply indicating that the company is an “equal opportunity employer.”

Although employees hired outside of the United States are not covered by the regulations, if a contractor is not able to obtain a visa of entry for an employee or potential employee to a country in which it is doing business, the regulations require the contractor to notify both the OFCCP and the U.S. Department of State if the contractor believes that the refusal of the visa is due to the individual’s protected characteristic. This requirement now applies to sexual orientation and gender identity status. 

Affirmative Action Plan Placement Goals Changes

The section of the regulations regarding Placement Goals in AAPs has also been updated. Contractors are prohibited from extending preferences on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin due to specific placement goals.

What is not affected by the Final Rule?

The Final Rule does not change contractors’ reporting and information collection requirements, so contractors are not required to survey or report on the number of LGBT applicants or employees. The required components of Affirmative Action Plans are also not affected.

What should contractors do to comply?

The Final Rule simply adds sexual orientation and gender identity to the sections of the regulation where the other protected categories are listed, so the affect on federal contractors is limited. Contractors should, however, begin the process of determining whether and when they need to do the following:

• Update the EO Clause in subcontracts and purchase orders;

• Amend the EEO and AA policy to include sexual orientation and gender identity;

• Obtain new “EEO is the Law” posters;

• Modify their EEO tagline on job solicitations; and

• Train appropriate personnel on the new protections.

In addition, the OFCCP has issued FAQs regarding its interpretation of the Final Rule. These will probably be updated periodically as contractors pose questions to the OFCCP.

Why no proposed rule?

The OFCCP bypassed the Notice of Proposed Rule-making and comment period. They stated that the “Executive Order was very clear about the steps the Department of Labor was required to take and left no discretion regarding how to proceed. In such cases, principles of administrative law allow an agency to publish final rules without prior notice and comment when the agency only makes a required change to conform a regulation to the enabling authority and does not have any discretion in doing so.”

If you have any questions regarding this Final Rule, please contact a board certified labor attorney.

OFCCP Releases Final Rule on LGBT Non-discrimination