Effective March 31, 2024, the VEVRAA hiring benchmark will be 5.2%. The new benchmark is 0.2% lower than the previous benchmark of 5.4% and continues the Agency’s trend of reducing the benchmark each year. Since it’s inception in 2014, the benchmark has steadily declined, never once being increased by the Agency.

OFCCP has released additional resources to assist contractors with the setting and utilization of the hiring benchmark which are available on the VEVRAA Hiring Benchmark landing page.

As a reminder, covered government contractors have an obligation to create annual establish a veteran hiring benchmark as part of the preparation and implementation of its VEVRAA Affirmative Action Plan.

OFCCP has updated its Contractor Portal website with details for this year’s certification cycle.

Per the website

Beginning April 1, 2024, federal contractors will be able to certify the status of their AAPs for each establishment and/or functional/business unit, as applicable. The deadline for certifying compliance is July 1, 2024.

OFCCP has shifted the opening of the portal from March 31 to April 1. As a result, those contractors with April 1 affirmative action plan year dates will no longer be able to certify compliance prior to the expiration of their current AAP year.

In addition to announcing the new portal opening date, OFCCP has also released updated FAQs.

OFCCP directs contractors to the Portal Help Desk for answers to a number of questions, including those involving EEO-1 numbers and registering new entities. Given the backlog experienced in previous years, it might be best to reach out to the Help Desk as soon as you identify an issue.

OFCCP’s FAQs also continue to instruct contractors they need not certify establishments with less than 50 employees if a separate AAP is not prepared for that establishment:

10. Do I have to include my establishment in the Contractor Portal if it has fewer than 50 employees?

It depends on whether the establishment maintains a separate AAP. If the establishment has fewer than 50 employees and maintains an AAP only for those employees, it must be included in the Contractor Portal. See 41 CFR 60-2.1(d)(2) (describing which employees should be covered in an AAP). If the establishment has fewer than 50 employees and does not maintain an AAP only for those employees, the contractor does not need to list the establishment in the Contractor Portal.

To be clear however, employees in sub-50 establishments need to be included in an AAP, even if it is not a separate AAP for that establishment.

We will continue to monitor for additional information as this year’s certification process unfolds and will provide updates as needed.

In 2023, the OFCCP demonstrated renewed vigor in audits, recovering $17.3 million from federal contractors for alleged hiring and compensation discrimination. It also was a year of churn, challenge, and change as the agency updated procedures for discrimination complaints, managed a massive FOIA request for EEO-1 reports and accompanying litigation, and rolled out a new scheduling letter requiring substantially more information from contractors at the outset of an audit. Listen to our podcast episode as we review the OFCCP’s activities in 2023 and provide a glimpse into what employers can expect in 2024.

EEOC has updated its EEO-1 data collection website to announce the data collection for the 2023 EEO-1 Component 1 reports will open April 30, 2024. The Agency has set June 4, 2024 as the deadline for reporting.

The notice also indicates the “online Filer Support Message Center (i.e., filer help desk) will also be available on Tuesday, April 30, 2024, to assist filers with any questions they may have regarding the 2023 collection.”

Further information about data specifics and other filing instructions are not yet available.

As a reminder, employers with 100 or more employees are required to file the annual EEO-1 Component 1 report. The filing requirement applies to federal contractors with 50 or more employees.

We will continue to monitor the situation and provide updates as information becomes available.

As previously reported, in December 2023, the U.S. Department of Labor, Office of Federal Contract Compliance Programs (OFCCP) was ordered to release the EEO-1 reports of federal contractors it had withheld from production in response to the Center for Investigative Reporting’s Freedom of Information Act (FOIA) request for the records.

The United States Attorneys’ office representing OFCCP filed a Notice of Appeal on February 15, 2024 seeking judicial review of the Order. The government is seeking a stay of the February 20, 2024 disclosure deadline pending the appeal.

We will continue to monitor and share any additional updates as they become available.

In recognition of the 15th anniversary of the Lilly Ledbetter Fair Pay Act, the Biden Administration has released a proposal that would prohibit federal contractors from using a job applicant’s prior salary history when setting pay and require federal contractors to post the expected salary range in its job postings. >>Learn more here.

In recognition of the 15th anniversary of the Lilly Ledbetter Fair Pay Act, the Biden administration released on Monday, January 29th, a Notice of Proposed Rule Making (NPRM) that would prohibit federal contractors from using job applicant’s prior salary history when setting pay and would require federal contractors to post the expected salary range in its job postings.

The proposed rule will:

  1. prohibit contractors and subcontractors from seeking and considering information about job applicants’ compensation history when making employment decisions about personnel working on or in connection with a government contract; and
  2. require contractors and subcontractors to disclose, in all advertisements for job openings involving work on or in connection with a government contract placed by or on behalf of the contractor or subcontractor, the compensation to be offered to the hired applicant, for any position to perform work on or in connection with the contract.

There is also a proposed mechanism for applicants to submit a complaint for contractor noncompliance, which will be investigated by the contracting agency and forwarded to OFCCP if the complaint alleges discrimination.

The proposed rule is open for public comment until April 1, 2024.

Our Affirmative Action, OFCCP and Government Contract Compliance Practice Group and Pay Equity Resource Group are partnering to digest the proposed rule and will release further details and insights.

Acting OFCCP Director Michelle Hodge announced the new Southwest and Rocky Mountain (SWARM) Regional Director selection in an “Acting Director’s Corner” message e-mailed to stakeholders on January 16, 2024.

The congratulatory announcement detailed now-Regional Director Sullivan’s more than 17-year tenure with OFCCP noting

[g]iven Ronny’s extensive OFCCP experience in the SWARM Region, he is equipped to effectively implement the mission of the agency and the Department and lead the Region to successfully identify and resolve high-impact systemic discrimination cases.

Regional Director Sullivan replaces Pacific Regional Director Jane Suhr who filled the role on an interim basis after Melissa Speer’s retirement in 2023.

We look forward to continuing to work with Ronny and congratulate him on his new role!

After significant delay, the day is finally here! The 2022 EEO-1 Component 1 data collection opened today, Tuesday, October 31, 2023.

The EEOC urges filing employers to begin the filing process as soon as possible to meet the Tuesday, December 5, 2023, deadline. The EEOC advises filers to consult the new 2022 EEO-1 Component 1 Instruction Booklet, prepared by the EEOC’s Office of Enterprise Data and Analytics (OEDA), to better understand their reporting requirements and changes to the filing process.

Notably, some of the changes include:

  • Federal contractors will now have to answer a series of questions regarding their federal contracts. Contractors may also need to include their Unique Entity Identification Number(s), which replaced the DUNS number, on their filings. The EEOC has published some FAQs related to UEIs and EEO-1 filings here.
  • Filers must use their updated 2022 NAICS codes, which can be retrieved here.
  • Employers must file establishment reports for all establishments, regardless of establishment size.
  • Any filer who went through a merger, acquisition, or spinoff since their last EEO-1 report filing must use the specific module on the Online Filing System to report these changes following the instructions provided in the instruction booklet and the acquisition, spinoff, or merger factsheet.

EEOC has also release two additional volumes of FAQs (Volumes 2 and 3) to correspond with the opening of the collection.

Stay tuned for additional thoughts and insights as we guide employers through the filing process.

Bridget Golden, law graduate, also contributed to this post.

As has been highly anticipated since the finalization of the Agency’s recently updated Scheduling Letter, OFCCP has released a new list of contractors selected for audit (FY2023 Release 2). The Agency has also published an explanation of the methodology used to select the contractors for review.

Per the Agency’s e-mail notification, it selected 1,000 contractors and subcontractors for audit. A quick review of the list reveals that there are 1,000 establishment/FAAPs identified, but several contractors have multiple reviews listed. Thus, it seems to be more accurate that there are 1,000 reviews scheduled.

Contractors who appear on the list should start preparing immediately as we expect OFCCP to start initiating audits imminently.

We are in the process of digesting the list and methodology and will back soon with more insights.