About Us  |  About Cheetah®  |  Contact Us

OFCCP intends to publish final pay secrecy regulations in August

By Cynthia L. Hackerott, J.D.

The Department of Labor’s (DOL) Regulatory Agenda for Spring 2015 indicates that the OFCCP expects to publish a final rule on regulations to prohibit pay secrecy in August. The OFCCP anticipates the final rule on its Equal Pay Report will be published in November 2015, and the agency’s proposed revisions to its construction contractor regulations are also slated for publication in November. In addition, the agency intends to issue a final rule with sex discrimination regulations to replace its outdated sex discrimination guidelines in December 2015.

OFCCP – Proposed Rule Stage: Construction Contractor Affirmative Action Requirements (RIN: 1250-AA01). The OFCCP plans to issue a Notice of Proposed Rulemaking (NPRM) to revise the regulations in 41 CFR Parts 60-1 and 60-4 implementing the affirmative action requirements of Executive Order (EO) 11246 that are applicable to federal and federally assisted construction contractors. The existing regulations provide that the OFCCP issue goals and timetables for the utilization of minorities and women based on appropriate workforce, demographic or other relevant data. However, the existing minority goals for construction were issued in a 1980 based on 1970 Census data, the most current data available at the time. The goals for the utilization of women in the construction occupations were issued in 1978, and extended indefinitely in 1980, and were also developed using 1970 Census data.

According to the agency, recent data show that disparities in the representation of women and racial minorities continue to exist in on-site construction occupations in the construction industry. The proposed rule would remove these outdated goals and propose a new method for establishing affirmative action goals, and propose other revisions to the affirmative action requirements that reflect the realities of the labor market and employment practices in the construction industry today.

The OFCCP plans to issue this NPRM in November 2015.

OFCCP – Final Rule Stage: Requirement to Report Summary Data on Employee Compensation (Compensation Data Collection) (RIN: 1250-AA03). On August 10, 2011, the OFCCP published an Advance Notice of Proposed Rulemaking (ANPRM) in the Federal Register (76 FR 49398) regarding the agency’s consideration of the development of a new strategic compensation data collection tool that will effectively identify contractors that are likely to violate EO 11246. The comment period on the ANPRM closed on October 11, 2011. On April 8, 2014, President Obama issued a memorandum (79 FR 20751, April 11, 2014) to the Secretary of Labor, directing him to propose, within 120 days of the date of the memorandum, a rule that would require federal contractors and subcontractors to submit to the Department of Labor summary data on the compensation paid to their employees, including data by sex and race.

A NPRM was published in the Federal Register on August 8, 2014 (79 FR 46562) with corrections published on August 20 (79 FR 49260) that would require some covered federal contractors and subcontractors would be required to electronically submit an annual “Equal Pay Report” on employee compensation as a supplement to the annual EEO-1 Report. The OFCCP’s proposal would revise its regulations at 41 CFR Part 60-1, which set forth the reporting obligations of covered federal contractors and subcontractors under EO 11246. The original comment deadline on the NPRM was November 6, 2014, but a notice was published on November 5, 2014 extending the comment period to January 5, 2015 (79 FR 65613).

The agency expects to issue this final rule in November 2015.

OFCCP – Final Rule Stage: Discrimination on the Basis of Sex (RIN: 1250-AA05). The OFCCP’s regulations at 41 CFR Part 60-20 set forth the interpretations and guidelines for implementing EO 11246 in regard to promoting and ensuring equal opportunities for all persons employed or seeking employment with government contractors and subcontractors without regard to sex. This nondiscrimination requirement also applies to contractors and subcontractors performing under federally assisted construction contracts.

The guidance in Part 60-20 was first published in the Federal Register on June 9, 1970 (35 FR 8888) and became effective as reissued (43 FR 49258) on October 20, 1978. It has not been updated since it was first published. Since that time, the nature and extent of women’s participation in the labor force and employer policies and practices have changed significantly. In addition, extensive changes in the law regarding sex-based employment discrimination have taken place, the OFCCP points out, noting that Title VII has been amended twice. Indeed, some of the guidelines’ provisions deviate from well-established law, and the agency no longer enforces outdated provisions. Thus, the OFCCP published a NPRM in the Federal Register on January 30, 2015 (80 FR 5246) designed to clarify contractors’ obligations under current law and remove conflicting regulatory provisions.

The original public comment deadline for the NPRM was March 31, 2015. However, on March 27, 2015, the OFCCP announced an extension of the deadline to April 14, 2015, to allow the public time to comment on the impact of the U.S. Supreme Court’s March 25, 2015 decision in Young v United Parcel Serv. A notice of this extension was published in the Federal Register on April 1, 2014 (80 FR 17373). In Young, the Court held that an individual pregnant worker who seeks to show disparate treatment under Title VII through indirect evidence may do so through application of the McDonnell Douglas framework, but such plaintiffs are not required to show that the employer’s policy rationale was intentionally biased; rather, the employee can satisfy her burden of showing pretext by demonstrating that the policy put a “significant burden” on pregnant employees, and that the employer’s reasoning was not sufficient to justify that burden. In the extension announcement, the OFCCP noted that it follows “Title VII principles” when enforcing EO 11246.

The final rule is slated for publication in December 2015.

OFCCP – Final Rule Stage: Non-Retaliation for Disclosure of Compensation Information (RIN: 1250-AA06). On April 8, 2014, President Obama issued EO 13665 (79 FR 20749, April 11, 2014) prohibiting discrimination by federal contractors and subcontractors against certain of their employees and job applicants for disclosing compensation information, and directing the Department of Labor to propose regulations implementing this amendment to EO 11246.

A proposed rule was announced by the agency on September 15, 2014, and a NPRM was published in the Federal Register two days later (79 FR 55712). The comment period on the NPRM ended on December 16, 2014. The OFCCP anticipates publication of the final rule in August 2015.