Workforce Bulletin

As featured in #WorkforceWednesday®: This week, we highlight new guidance from the Equal Employment Opportunity Commission (EEOC) and Department of Justice (DOJ) on diversity, equity, and inclusion (DEI)-related discrimination.

We also examine the Acting EEOC Chair’s letters to 20 law firms regarding their DEI practices, as well as the Office of Federal Contract Compliance Programs (OFCCP) Director’s orders to retroactively investigate affirmative action plans.

As featured in #WorkforceWednesday®: This week, we examine the risks tied to diversity, equity, and inclusion (DEI) initiatives that employers face due to the Trump administration’s executive orders and the ensuing scrutiny from federal agencies, including the Equal Employment Opportunity Commission (EEOC).

President Trump’s two anti-DEI executive orders are temporarily blocked, but some employers are adjusting policies and shifting the way they collect workforce data. While critical obligations, such as EEO-1 reporting, remain in place, the EEOC’s acting chair has indicated the agency will prioritize addressing race and gender discrimination and bias.

In this week’s episode, Epstein Becker Green attorneys Jill K. Bigler and Briar L. McNutt discuss how employers can balance compliance with federal, state, and international regulations while effectively mitigating risks.

As featured in #WorkforceWednesday®: This week, we’re covering significant updates shaping workplace policies, including shifts in regulations and enforcement related to diversity, equity, and inclusion (DEI); evolving approaches to Equal Employment Opportunity Commission (EEOC) compliance; and recent changes in National Labor Relations Board (NLRB) guidance.

As featured in #WorkforceWednesday®: This week, we’re highlighting notable employment law updates from federal agencies and the courts, including the Equal Employment Opportunity Commission (EEOC), the Department of Labor (DOL), and the U.S. Court of Appeals for the Fifth Circuit.

As we previously reported, the US Department of Labor, Office of Federal Contract Compliance Programs (“OFCCP”) announced back in August 2022, that it had received a Freedom of Information Act (“FOIA”) request from the Center for Investigative Reporting (“CIR”), for any and all Type 2 Consolidated EEO-1 Reports for 2016-2020 (“Consolidated Reports”) filed by federal contractors (“Covered Contractors”).  In response to the request, OFCCP has provided Covered Contractors with the opportunity to object to the release of the Reports and on February 15 extended the deadline for objections to March 3, 2023.  

On August 18, the US Department of Labor, Office of Federal Contract Compliance Programs (“OFCCP”) announced that it had received a Freedom of Information Act (“FOIA”) request from the Center for Investigative Reporting (“CIR”), for all Type 2 Consolidated EEO-1 Reports filed by federal contractors from 2016-2020 (“Covered Contractors”) and that OFCCP has reason to believe that the information requested may be protected from disclosure under FOIA Exemption 4, which protects disclosure of confidential commercial or financial information and trade secrets. Accordingly, OFCCP has provided Covered Contractors with 30 days, i.e., until September 19, 2022, to submit written objections to the public release of their Type 2 EEO-1 Reports.

[UPDATE: As of September 15, 2022, the deadline to submit objections is extended to October 19, 2022.]

CIR’s FOIA request asks for a spreadsheet of all consolidated Type 2 EEO-1 reports for all federal contractors, including “first-tier subcontractors,” i.e., subcontractors that contracted directly with a prime federal contractor. Type 2 EEO-1 reports are one of several different types of reports that multi-establishment employers must file annually, which consist of a consolidated report of demographic data for all employees at headquarters as well as all establishments, categorized by race/ethnicity, sex, and job category.

President Biden’s $6 trillion 2022 budget proposal focuses on worker protections—including the American Jobs Plan and the American Families Plan. Both of these plans contain labor and numerous employment initiatives. The budget proposes increased funding for the Department of Labor (“DOL”), the Equal Employment Opportunity Commission (“EEOC”), and the National Labor Relations Board (“NLRB” or “Board”).

The 2022 budget calls for $2.1 billion, an increase of $304 million, in DOL’s worker protection agencies. Over the past four years, those agencies ...

As featured in #WorkforceWednesday: This week on our special podcast series, Employers and the New Administration, employers await action from two agencies: the Office of Federal Contract Compliance Programs and the Occupational Safety and Health Administration. Guest attorney Bob O’Hara discusses the regulatory actions employers should anticipate. Attorney David Garland leads the conversation.

Employers and the New Administration is a special podcast series from Employment Law This Week®, with analysis of the Biden administration’s first 100 days ...

On his first day in Office, President Biden issued Executive Order 13985, “Advancing Racial Equity and Support for Underserved Communities Through the Federal Government” (“Executive Order”), stating that “[i]t is . . . the policy of [his] Administration that the Federal Government should pursue a comprehensive approach to advancing equity for all.” The Executive Order revokes President Trump’s Executive Order 13950, which had imposed restrictions on workplace diversity training under the guise of combatting race and sex stereotyping.

As we reported in our ...

We have long counseled employers using or contemplating using artificial intelligence (“AI”) algorithms in their employee selection processes to validate the AI-based selection procedure using an appropriate validation strategy approved by the Uniform Guidelines on Employee Selection Procedures (“Uniform Guidelines”).  Our advice has been primarily based on minimizing legal risk and complying with best practices.  A recently updated Frequently Asked Questions (“FAQ”) from the Office of Federal Contract Compliance Programs (“OFCCP”) provides further ...

The United States Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) recently sent 1,000 Corporate Scheduling Announcement Letters (“CSALs”) to 515 federal government contractors. The CSALs provide advance notice that contractor establishments may be audited by the OFCCP during the scheduling cycle, which ends September 30, 2018, to ensure compliance with the contractors’ non-discrimination/affirmative action obligations.

The CSALs were sent on February 1, 2018, to the attention of the Director of Human Resources of the ...

The United States Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) on January 17, 2017, just days before the inauguration of President Donald Trump, filed a lawsuit against Oracle America, Inc. (“Oracle”), alleging discrimination in its compensation and hiring practices, and its refusal to produce requested records and data. See Complaint. The lawsuit, filed with the Office of Administrative Law Judges, stems from a compliance review initiated by the OFCCP on September 24, 2014 at Oracle’s Redwood Shores headquarters in ...

With the release of President Obama’s budget for the DOL on February 9, 2016, the Office of Federal Contract Compliance Programs (“OFCCP") announced two top enforcement priorities for 2016. First, the OFCCP will continue to identify and address systemic pay discrimination in its efforts to reduce the gender and race-based pay gap.  Second, the OFCCP will establish regional centers staffed with “highly skilled and specialized compliance officers” to conduct “large, complex compliance evaluations” in specific industries, including the financial services ...

By: Dean R. Singewald II

A recent settlement with the Department of Labor’s Office of Federal Contract Compliance Programs (the “OFCCP”) has once again made clear that, if an employer is a federal government supply and service contractor or subcontractor subject to the affirmative action/non-discrimination obligations imposed by Executive Order 11246, including the obligation to develop and maintain a written affirmative action program, it is imperative that the employer properly track its applicants and hires.

Such tracking should include documenting the gender and ...