OFCCP to Revise Sex Bias Guidelines, Develop Pay Data Collection Tool, Shiu Says

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The Labor Department's Office of Federal Contract Compliance Programs plans to propose revisions to sex discrimination guidelines for federal contractors that have not been updated in more than 30 years and to continue its development of a compensation data collection tool to help the agency combat pay discrimination, OFCCP Director Patricia A. Shiu said July 12.

The director was answering questions during a live web chat on OFCCP's entries in DOL's semiannual regulatory agenda, which was released July 7. Shiu also discussed the agency's plans to update contractors' affirmative action and equal employment opportunity obligations for military veterans, individuals with disabilities, and construction workers.

Additionally, Shiu highlighted other developments at OFCCP, including the agency's efforts to update its Federal Contract Compliance Manual and its proposal to revise the scheduling letter and itemized listing used to initiate contractor compliance evaluations.

“Currently, we are engaged in several efforts to strengthen and update our regulations, bringing them in line with current law and adjusting to the realities of a modern labor force,” Shiu said.

Plans to Revise Sex Bias Guidelines.

In the most recent regulatory agenda, OFCCP for the first time mentioned plans to propose a rule in February 2012 to update sex discrimination guidelines under Executive Order 11246 at 41 C.F.R. part 60-20.

“The guidance in part 60-20 is more than 30 years old,” Shiu said, observing that significant changes in “employer policies and practices and the nature and extent of women's participation in the labor force” have occurred since the guidelines were issued. She pointed to the guidelines' provision on pensions as an example of how they are outdated.

“It says that it's not sex discrimination if contractors provide either equal contributions to [an] employee's pension funds or provide contributions that result in equal benefits upon retirement,” Shiu said. “But the [U.S.] Supreme Court has now ruled that it is impermissible to require employees of one sex to make larger contributions than the other in order to receive the same monthly benefits. Therefore, the greater cost of providing a pension to members of one sex is not a defense to failing to provide benefits equally to members of both sexes.”

As such, she said, OFCCP is proposing to revise the sex discrimination guidelines to reflect “changed conditions” in the workplace as well as “the current state of the law in this area.”

Pay Data Tool Expected Soon.

The regulatory agenda also indicated that OFCCP soon plans to issue an advance notice of proposed rulemaking (ANPRM) on a new compensation data collection tool. OFCCP first mentioned this tool in last fall's regulatory agenda.

Shiu said the ANPRM is in the “final stages of review,” and she expects the agency will publish it “within the next few weeks.” OFCCP plans for an NPRM to follow in June 2012, according to the agenda.

Asked if the new tool would be related to the rescinded Equal Opportunity Survey (EO Survey), which had required contractors to submit detailed information about their compensation practices to OFCCP, Shiu responded that the agency “has no plans to reissue the old EO Survey.”

“The tool under development would focus on collection of compensation data,” Shiu said. “OFCCP's experience with the EO Survey and public comments in response to the current rulemaking will inform development of the compensation data collection tool.”

Shiu added that OFCCP and the Equal Employment Opportunity Commission “routinely work closely together.”

“And this includes sharing our thoughts and experiences surrounding an appropriate compensation tool,” she said.

Continuing on the topic of pay bias, Shiu was asked how contractors should analyze their pay practices in light of OFCCP's proposed rescission of its 2006 interpretive standards for systemic compensation discrimination and voluntary guidelines for self-evaluation of pay practices for federal contractors and subcontractors under EO 11246 (29 HRR 7, 1/10/11).

“In response to the proposed rescission, people have made us aware of the need to develop new guidance,” Shiu said. “We are reviewing those comments.”

Shiu did observe that OFCCP does not require one particular methodology for a contractor's analysis of its pay practices. “Contractors may use any method that is consistent with [Title VII of the 1964 Civil Rights Act] principles,” she said.

When asked about time periods for analyzing compensation data, Shiu said “there is no set period of time” and that such periods are “determined on a case-by-case basis.”

Analyzing Comments on Veterans Proposal.

In April, OFCCP published a proposed rule that would revise federal contractors' affirmative action and nondiscrimination obligations for certain categories of protected military veterans under Section 4212 of the Vietnam Era Veterans' Readjustment Act (29 HRR 459, 5/2/11).

The proposal's public comment period expired July 11, and Shiu said OFCCP is currently in the process of reviewing and analyzing those comments, which “may take several weeks to complete.” She said the agency received approximately 80 comments as of July 12. “There is a little bit of lag time in publishing the comments to regulations.gov, so several more should post over the next day or so,” she said.

Shiu added that OFCCP expects to issue a final rule “in the spring of 2012.”

On July 5, six employer groups in a letter urged OFCCP to withdraw its Section 4212 NPRM (29 HRR 740, 7/11/11). Responding to a question about that request, Shiu said OFCCP “will not withdraw” its proposal.

“The proposed rule is just that—proposed, not final—and was clear in actively seeking the specialized knowledge and input of all interested parties,” she said. “OFCCP welcomes these various perspectives and believes that they will assist us in developing a final rule that achieves the goal of increasing employment opportunities for protected veterans while not creating undue burdens for contractors.”

Shiu also addressed questions regarding OFCCP's proposed revisions to the scheduling letter and itemized listing it uses to notify contractors of their selection for a compliance evaluation and to request copies of contractors' affirmative action plans and support data (29 HRR 513, 5/16/11). The comment period for that proposal ended July 11.

OFCCP will review the “few comments received” and “will make a determination regarding the letter and the itemized listing in the very near future,” Shiu said. “Our goal is to complete our consideration of the comments, any revisions needed, and return the document with any appropriate revisions to OMB by no later than the end of July,” she said.

Additionally, Shiu briefly detailed OFCCP's performance statistics for the first six months of fiscal year 2011 and said the agency has “completed 44 financial conciliation agreements that include $5.66 million and 657 job offers for 8,090 victims.”

By Jay-Anne B. Casuga

A transcript of the web chat with Shiu can be accessed at http://www.dol.gov/regulations/chat-ofccp-201107.htm .