On July 29, President Biden announced new vaccination guidelines for federal government employees and onsite government contractors. Every federal government employee and every government contractor who works on government property will be required to disclose their vaccination status. Any such employee or contractor who does not attest to being fully vaccinated will be required to wear a mask on the job at all times (no matter where they are physically located), to physically distance from all other employees and visitors, to comply with a weekly or twice-weekly COVID-testing regimen, and generally will be prohibited from travelling for work.

As if you could forget, we’re now less than two months from the court-mandated September 30, 2019, deadline to submit EEO-1 Component 2 data to the EEOC. Every employer with at least 100 total employees (across all locations) must submit a count of employees broken down by establishment, gender/race-ethnicity combination, EEO job category, and pay band, as well as the total number of hours worked for all employees in each one of those unique combinations. That’s more than 3,500 data points per establishment!

• You must select an employee snapshot from one pay period from October through December of each year (2017 and 2018); it does not have to be the same period you used for EEO-1 Component 1 reporting (which you previously filed).
• You must count all full and part-time employees on your payroll for that period; you do not count “leased” employees (such as temp agency employees) or temporary or seasonal employees.
• You must group employees by pay band based on their final, W-2 Box 1 wages for each calendar year. Do not prorate or otherwise adjust these amounts.
• For non-exempt workers, you must count actual hours worked, which (under the FLSA regulations, which are used to count hours for this reporting) does not include, for example, paid time off, vacation, or holiday hours.
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After a tortured history, the EEOC’s pay-data collection requirements are back! At least for now.

Consistent with some recent federal court rulings, all employers with 100 or more employees, as of now, must submit summarized pay data for all employees for 2017 and 2018 to the EEOC by September 30, 2019. The government is appealing the court rulings, and there still is a possibility that the pay-data reporting will not happen. But pending appeal and further details regarding the format and process for reporting employee pay data, employers should begin now to collect and review 2017 and 2018 pay data and to clean up any errors.

Regulatory Background

In 2014, President Obama directed the EEOC to develop a tool for collecting pay data from employers. In September 2016, the EEOC announced that pay-data collection would be incorporated into employer’s annual EEO-1 reports, beginning in December 2017. The initial proposal required EEOC to collect pay data for at least twice before September 30, 2019.

The EEOC regulations required employers to report, within each of the 10 EEO-1 job categories and 14 gender, race, and ethnicity categories, how many employees gross W-2 wages for the prior 12-month lookback period fall within each of 12 different pay bands. The      Continue Reading...

In 2016, with much fanfare, the EEOC adopted new summary pay-reporting requirements for all employers who file an EEO-1 report, which includes most employers with at least 100 employees and most federal government contractors with at least 50 employees and a government contract worth at least $50,000. In August 2017, before those new requirements went into effect, the Office of Management and Budget (OMB) issued an immediate stay that excused employers from having to report pay data. But on March 4, 2019, with the 2018 filing period opening in mid-March (pushed back due to the government shutdown earlier this year), a judge in the District of Columbia ruled that the OMB had no grounds to stay the pay collection rules, and the Court lifted the stay. The EEOC had purged from its website its prior guidance and instructions regarding pay collection, and it remains to be seen whether EEOC will require—or even be equipped to receive—payroll compensation data for the 2018 reporting cycle.

On March 27, 2017, President Trump took two actions to roll back a controversial Obama-era requirement for government contractors. 

The OFCCP recently published final Pay Transparency regulations for government contractors. Mandated by Executive Order, the new regulations protect applicants and employees from adverse treatment for sharing pay information, establish employer defenses to pay-transparency discrimination claims, and impose publication requirements on contractors. 

A new ruling by the National Labor Relations Board (NLRB) threatens to destroy the line separating corporate entities and the corresponding limitations on liability by dramatically expanding the definition of “joint employer” in the labor context.

By the end of the third quarter of each year (September 30), the government requires certain federal contractors and other large employers to disclose demographic data about their workforce. Are you ready to file? 

What reports have to be filed? 

The federal government mandates that certain employers disclose the demographics of their workforce in two different annual reports: 

• The U.S. Equal Employment Opportunity Commission (EEOC) and the Office of Federal Contractor Compliance Programs (OFCCP) require an EEO-1 Employer Information Report, which summarizes gender and race/ethnicity demographics.
• The U.S. Department of Labor Veteran’s Employment and Training service and the OFCCP require a VETS-4212 Veterans’ Employment Report (which this year replaces the prior VETS-100 and VETS-100A reports), which summarizes protected veteran demographics. 

The Department of Labor’s Office of Federal Contract Compliance Program (OFCCP), which regulates companies that contract or sub-contract to do business with the federal government, issued proposed rules last week that would replace the existing sex-discrimination guidelines for contractors. The proposed rules purport to account for changes in sex-discrimination laws that have occurred since the rules were first adopted in 1970 and to address current workplace issues.

Among other changes, the proposed regulations: