Hunton Employment & Labor Perspectives

As employers know, the federal government’s New Year’s resolutions often do not make employers’ lives easier. The following are recent developments of which employers should be aware. 

EEO-1 Filing Delayed

The Equal Employment Opportunity Commission (EEOC) announced on January 20, 2023 that the EEO-1 portal likely will open in “mid-July” resulting in a three-month delay from the previously announced opening in March.

As a reminder, employers with 100 or more employees (and federal contactors or first-tier subcontractors with 50 or more employees) must complete the EEO-1 survey using data from a pay period in the fourth quarter of the prior year.

While the EEOC did not provide an explanation for the delay, it is likely a result of its proposed revisions to the EEO-1 still being under review by the Office of Management and Budget (OMB). The proposed form eliminates different types of reports and streamlines reporting with one new “Establishment-Level Report.”

EEOC Strategic Enforcement Plan

On November 4, 2022, EEOC released its Strategic Enforcement Plan for comment. Comments are due February 9, 2023. Important, and not surprisingly, pay equity is one of the top issues. This forwards the Biden Administration’s focus on pay equity demonstrating that the EEOC (and Office of Federal Contract Compliance Programs) are increasing their focus on obtaining compensation data to investigate and enforce equal pay.

Employers and federal contractors alike should work with counsel to conduct appropriate privileged compensation analyses to ensure compliance with the litany of varying legal requirements in this area. Indeed, navigating the multiple standards, pay transparency, and pay disclosure is crucial to ensuring limited exposure in this area.

OFCCP Proposed New Scheduling Letter

On November 21, 2022, Office of Federal Contract Compliance Programs (OFCCP) published a notice seeking authorization of a revised scheduling letter and itemized listing. Stakeholders were given until January 20, 2023 to file comments in response to the proposed changes. Importantly, the proposed changes would have a drastic (and in some cases devastating) effect on federal contractors’ ability to timely and wholesomely respond to the scheduling letter and itemized listing.

Corporate Scheduling Announcement List Released – Get Prepared

On January 20, 2023, OFCCP released its Corporate Scheduling Announcement List (CSAL) identifying companies for which it will schedule audits in FY 2023. While audits could begin as early as March 2023, audits are unlikely to begin until the OMB has approved a new version of the scheduling letter and itemized listing, which outlines the types of information contractors must supply upon initially receiving a scheduling letter. Federal contractors (especially those on the CSAL), should contact counsel to ensure they are prepared for the new regime’s approach to audits and compliance with OFCCP regulations.