Category Archives: OFCCP Compliance & News

Clarification to Minimum Wage Increase News Flash


We realize that it has been a few years since the federal contractor minimum wage regulations from Executive Order 13658 have gone into effect.  Due to several questions that we have received, we have put together specific information as to what contracts are covered, what your organization should do if you are covered, and more.

Also, we are including a link to the poster for you to display, if you aren’t already, in a conspicuous place to satisfy the notice requirement of the regulations.  The new poster for the 2018 increase will be officially released shortly.

What Contracts Are Covered?

First, the minimum wage regs only cover “new” contracts which are entered into or existing contracts that are modified or extended after January 1, 2015.

Second, the regs only apply to the following contracts/subcontracts:

  • Procurement contracts for construction covered by the Davis-Bacon Act (DBA).  It does not include construction contracts covered by DBA related acts such as the Federal-Aid Highway Acts, the Community Development Act, or the American Recovery and Investment Act.
  • Service contracts covered by the Service Contract Act (SCA).  Coverage of the SCA is fairly specific.  A DOL fact sheet, discussing coverage of the act can be found here.  If you have a service contract that does not specify that it is covered by the SCA, the regs do not apply.
  • Contracts for Concessions where the federal government contracts for the provision of food, lodging, fuel, souvenirs, recreational equipment or newspaper stands in connection with the use of federal property, lands or facilities.
  • Contracts in connection with federal property or lands for the provision of services to federal employees, their dependents, or the general public.  The provision of supplies in support of these contracts is not covered by the regs.

Continue reading Clarification to Minimum Wage Increase News Flash

VETS-4212 Filing Deadline Extended / Federal Contractor Minimum Wage Increasing


The Department of Labor has announced a 45-day extension to the deadline for filing the VETS-4212 Report.  The deadline has been pushed from September 30, 2017 to November 15, 2017. 

This announcement comes off the heels of Hurricanes Harvey and Irma, granting employers across the country extra time as business returns to normal.


In other news, the minimum wage for federal contractors and subcontractors will increase to $10.35/hour on January 1, 2018, up from the current rate of $10.20/hour.  The hourly rate for tipped employees will also jump to $7.25/hour, up from the current rate of $6.80/hour. 

This will be the third increase since Executive Order 13658 went into effect in January 2015.

Please don’t hesitate to contact our office with any questions.

OFCCP/EEOC Merger is off the Table

The prospect of having a combined OFCCP and EEOC is no more.  On September 12, the House of Representatives agreed to prohibit funds from being used to combine the two agencies, slamming the door to any possibility of a merger.

The House’s rejection follows in the footsteps of last week’s merger denial by the Senate Appropriations Committee.  Quoted by Bloomberg as calling the merger proposal “a total mess,” Rep. Bobby Scott (D-Va.), ranking member of the House Committee on Education and the Workforce, explained that each agency has its own distinct mission and that combining them would lead to “total confusion.”

President Trump proposed the idea of a merger to promote cost-savings and efficiencies in the government.  However, the idea of a combined OFCCP and EEOC was quickly met by staunch opposition by civil rights organizations and management-side stakeholders.

So, what does this mean for contractors? 

First, the House and Senate will soon be meeting to reconcile their proposed budgets for the OFCCP.  Currently, the OFCCP is funded with $105 million.  The Senate proposed to lower funding to $103.5 million, whereas the House proposed funding of $94 million.  These are both significantly higher than President Trump’s proposed funding of $88 million.  Regardless of the agency’s new level of funding, cuts will be made, whether in terms of personnel and/or district offices.

Second, and perhaps more importantly, unless there is a fundamental change in the implementing regulations or a change in the legal status of affirmative action, the mission and activities of the OFCCP will remain essentially unchanged.  AAPs will still be required.  The OFCCP will still be conducting audits, though the frequency and duration of audit activity is unknown.  Employers will still be required to perform outreach, maintain records, and conduct self-audits.  So, in essence, we believe it will be business as usual in terms of affirmative action and OFCCP compliance. 

Please don’t hesitate to contact our office with any affirmative action or OFCCP matter.

OMB Suspends New EEO-1 Report and Other OFCCP Updates

In a welcome announcement for employers, the Office of Management and Budget (OMB) informed the Equal Employment Opportunity Commission (EEOC) that the compensation and hours-worked components of the new EEO-1 Report have been delayed from implementation pending further review.

In other words, the “old” EEO-1 Report employers are familiar with will remain in effect.

In a memo to the EEOC, the Office of Information and Regulatory Affairs explained that the lack of a public comment period for the method of data submission, as well as the need for further study of the burden to employers, resulted in the recommendation to delay the new Report.

Although the previous form has been reinstated, employers will still need to submit 2017 data by the new deadline of March 31, 2018.  Further information regarding when to capture the employee data will be forthcoming shortly.

Despite the changes with the EEO-1 Report, be aware that federal contractors must still file the VETS-4212 report by September 30, 2017.

Shifting to the world of OFCCP, the Agency has started to offer “buyouts” to eligible employees ahead of a proposed $10 million budget cut.  With a reduction in staff on the horizon, employers will likely continue to see a decrease in compliance audit activity.  In addition, audits will be taking more time to complete.  The OFCCP’s union is estimating up to 50-75 agency employees could leave.  This reduced headcount will likely result in the closure of some number of district offices.

Finally, according to a letter from Acting Director Tom Dowd dated August 29, the Trump administration’s proposed merger of the EEOC and OFCCP will likely be delayed due to the need for legislative action to transfer enforcement authority from the Department of Labor to the EEOC.  Because of the length of time required, the likelihood of this merger being accomplished before the next election cycle, if at all, is dwindling. 

Please don’t hesitate to contact our office with any questions regarding the above.

Asking Applicants for Prior Salary: Options for the Future

Throughout 2017, more and more states and municipalities have introduced and enacted legislation barring employers from asking for or only considering a job applicant’s prior salary in formulating a job offer.  Following in the footsteps of Massachusetts, Oregon, Delaware, and more, roughly twenty-five states and the District of Columbia are considering their own prior salary measures. 

The rationale behind these prohibitions is that existing wage inequities are perpetuated when considering the applicant’s salary history to set starting pay.

Employers across the country now find themselves at a critical juncture and should be weighing their options.  So, what are some broad considerations that an organization should be thinking about with an eye toward the future?

A first option is to get ahead of the curve and eliminate all inquiries regarding prior salary altogether.  From an administrative standpoint, this would be the easiest option, as the inquiry about prior salary would be removed from all applications and interviewer questionnaires.  Continue reading Asking Applicants for Prior Salary: Options for the Future

Proposed Merger of the OFCCP & EEOC – The Trump Administration Wants to See This Happen!

It’s officially on the table.  The 2018 budget proposal released yesterday by the Trump Administration officially calls for the merger of the OFFCP with the EEOC by the end of fiscal 2018 (September 30, 2018).  The proposal states:

“The proposed merger will benefit employers, workers, and the public by consolidating the oversight of federal equal employment opportunity under one roof.”

The budget also reduces funding for the OFCCP from $105M to $88M, a reduction of 16%.  This is expected to reduce Agency headcount from 571 employees in 2017 to 440 in 2018, a reduction of 131 employees or 23%.

The proposal also calls for establishing two Skilled Regional Centers, located in San Francisco and New York staffed with “…highly skilled and specialized compliance officers capable of handling various large, complex compliance evaluations in specific industries, such as financial services or information technology.”  The budget goes on to state that having these Centers, “…reduces the need for a network of field area and district offices.”  All of this points to the elimination of many of the District and Regional offices, and their staffs.

It is not clear what is meant by the phrase, “…handling various large, complex compliance evaluations…”  It could imply conducting compliance reviews of multi-establishment locations of a single contractor instead of the current focus on a single establishment.  This would be a major new development in the scope of compliance evaluations as well as conducting self-audits.

The budget anticipates that the Agency will continue to focus on systemic compensation discrimination and that 35% of conciliation agreements will be based on pay.  The other major focus will be on “…larger federal and federally-assisted construction projects…”

As an aside, since the proposal specifically references banks and IT organizations, this should be taken as a heads-up to these organizations that they should be anticipating in-depth reviews of their compensation practices. 

Preliminary reactions from the U.S. Chamber of Commerce and civil rights organizations have been to oppose the merger.  It is important to note that this is merely one of many proposals.  Comments from Senate and House Republicans have included statements that the budget will be “dead on arrival” when it reaches the respective legislative bodies.

It is important to keep in mind that even if the two Agencies do not merge, the OFCCP may still be looking at the loss of 16% of its funding and 23% of its staff as well as the fundamental restructuring of its operations.  This is just the opening salvo in the 2018 budget war.  Current indicators point to the legal concept of Affirmative Action and the associated compliance obligations continuing.  However, whether or not there is a merger, the enforcement protocols could be vastly different from what contractors have grown accustomed to under past administrations.

These remain interesting times.  We will keep you advised as further developments occur. 

The Future of the OFCCP, the Executive Order and Affirmative Action

It is with some trepidation that I even bring up this topic. However, as a practitioner of close to 40 years in the areas of affirmative action and EEO, I find myself more uncertain than ever before about the future of the Office of Federal Contract Compliance Programs (OFCCP), Executive Order (EO) 11246, and the legal principles behind affirmative action.

Ever since the election of Donald Trump, the future of affirmative action and the OFCCP has been a topic of discussion and conjecture in the legal, HR, and various stakeholder communities.  To the extent that commentators have been willing to weigh-in on the topic, most predictions have come down on the side that both the OFCCP and affirmative action as a legal principle are for the most part, “safe.”  However, just how “safe” things really are is far from certain.

On March 13, 2017, President Trump signed a new Executive Order directing the head of the Office of Management and Budget (OMB) to review every executive branch agency to identify “where money can be saved and services improved.”  OMB is to consider “… (ii) whether some or all of the functions of an agency, a component, or a program are redundant, including with those of another agency, component, or program…” and “… (iii) whether certain administrative capabilities necessary for operating an agency, a component, or a program are redundant with those of another agency, component, or program…”

Then, on March 16, 2017, President Trump’s 2017 budget was released.   The budget proposes a 21% reduction in funds for the Department of Labor (DOL).  There is nothing that indicates that the reductions will be spread evenly throughout the Department.  Some agencies and programs could experience larger reductions than others.

Six days later on March 22, 2017, Alexander Acosta, the nominee for Secretary of Labor, had his Senate confirmation hearing.  During the hearing, there was no discussion regarding his take on the future of the OFCCP.  However, in response to questioning, Acosta responded that he would follow the March 13, 2017 executive order.  Continue reading The Future of the OFCCP, the Executive Order and Affirmative Action

Corporate Scheduling Announcement Letters (CSALs) Mailed Out By OFCCP

The first CSAL mailing since 2014 was issued on February 17, 2017.  The letters were sent directly to establishments to the attention of the Human Resources Director.

CSALs are mailed directly to all establishments identified on the scheduling lists developed for a given scheduling cycle. Unlike previous years, OFCCP will not send notice to a corporation’s headquarters. Instead, the CSAL directs the establishment to forward the notice to corporate headquarters, if such is corporate policy.

There are 800 establishments on this first mailing for FY 2017, which covers 29 industries (based on reported NAICS codes) and 375 distinct companies.  This first release also includes 30 Corporate Management Compliance Evaluations (CMCEs). This means some organizations will receive letters for multiple establishments and some may receive a CMCE letter at their headquarters location.  OFCCP has not confirmed if/when another round of mailings will go out.

However, OFCCP clarified that a contractor’s establishment may be selected for a review outside of those receiving a CSAL notice.  The revised FAQ states, “These compliance evaluations may be scheduled by OFCCP when it receives credible information of an alleged violation of a law or regulations the agency enforces, including those deriving from individual or class complaints filed with the EEOC, or state or local fair employment practice agencies (FEPAs) that allege employment discrimination covered under the laws that OFCCP enforces.”

Corporate compliance officials should contact their local HR representatives at their company’s establishments to ensure they are aware that a letter from OFCCP or the Department of Labor may arrive in the next few days. Additionally, they should be aware that a CMCE letter may arrive at their corporate headquarters. Since OFCCP has once again given contractors advance notice of upcoming audits, it is highly recommended that employers take full advantage of this extra time to ensure they are prepared to submit complete and compliant AAPs and supporting documentation once they receive the audit scheduling notice.

Please contact us if there are any questions regarding the above.

New OFCCP Scheduling Letters Being Released?

Two independent sources have reported that the OFCCP is sending out new scheduling letters that were not preceded by the release of a Corporate Scheduling Announcement Letter (CSAL).  Previously, the OFCCP sent CSAL letters to contractors notifying them of the locations where the Agency planned to conduct compliance reviews.  The CSALs gave contractors a heads-up on pending reviews enabling them to begin preparation for the receipt of the scheduling letter.  In the past, CSALs had been sent out twice a year.  More recently, CSALs went out only once a year.  The last round of CSALs were sent out on November 10, 2014.  Compliance review activity for 2015 and 2016 was based on this last mailing.

While none of our clients have received a new scheduling letter, other sources are reporting that some contractors are receiving OFCCP scheduling letters for establishments not listed in the last CSALs.  These scheduling letters are being sent directly to the establishment the OFCCP plans to review.  The receipt of the scheduling letter triggers the thirty (30) day time period in which the targeted contractor must collect the data requested, conduct their own analysis of the data, and submit the data to the OFCCP.

A scheduling letter will typically be addressed to the General Manager or the HR Manager.  The letter is sent by “Certified Mail, Return Receipt Requested.”  The date the “Return Receipt Requested” card is signed triggers the start of the 30-day clock, not the date that the letter actually gets to someone who knows what the letter means and what is required.  For example, if the letter arrives at an establishment on March 1, 2017, addressed to the establishment’s General Manager who does not open it until March 10th, and he/she does not give it the HR Manager until March 17th, who does not notify corporate HR until March 20th, the Company only has ten (10) days in which to respond (by March 31st).

As such, we strongly recommend that all AAP locations be notified to stay alert for a possible letter from the OFCCP.  The OFCCP may call the facility prior to the receipt of the letter to confirm the name of the General/HR Manager as well as the correct mailing address.  Any calls from someone identifying themselves from the U.S. Department of Labor should be immediately reported to corporate HR and to our office if you work with our firm.  The receipt of any letter from the OFCCP should likewise be reported immediately.

Please contact us if there are any questions regarding the above.

Disability Self-ID Form Renewed for Three Years

On January 31, 2017, the Office of Management and Budget (OMB) approved the renewal of the Voluntary Self-Identification of Disability Form for an additional three (3) years.  The form now expires on January 31, 2020.

Although no changes were made to the form, contractors must immediately begin using the form with the expiration date “1/31/2020” in the top-right corner.

Depending on your organization, you may need to update your career site or applicant tracking system where the forms exist, as well as update all paper copies of the form.  To avoid any confusion, we recommend discarding all copies of the prior version.

Be advised that because the Self-ID form is an OMB-approved form, its content cannot be altered or changed.

For copies of the renewed form in English and other languages, please visit:

If you would like to discuss the Self-ID form in more detail as it pertains to your specific organization, please do not hesitate to contact us.