As
OFCCP explains in the Notice:
The
requirements in Executive Order 11246 generally apply to any business or organization
that: (1) holds a single Federal contract, subcontract, or Federally assisted construction
contract in excess of $10,000; (2) has Federal contracts or subcontracts with a
combined total exceeding $10,000 in any 12-month period; or (3) holds
Government bills of lading or serve as a depository of federal funds . . . Generally the contractors already required to prepare
written AAPs.
The
new requirement will not apply to all government contractors and subcontractors. It is meant to primary cover contractor who
are already required to prepare a written affirmative action plan. The employer must” have more than 100
employees, and a contract, subcontract, or purchase order amounting to $50,000
or more that covers a period of at least 30 days, including modifications.” The new reporting requirement will add “two
columns of additional information to the EEO-1 Report in a new Equal Pay Report
to OFCCP” that generally must be submitted electronically. In particular, the
new form would collect the following information:
·
the total number of workers within a specific
EEO-1 job category by race, ethnicity and sex;
·
total
W-2 earnings defined as the total individual W-2 earnings for all workers in
the job category by race, ethnicity, and sex; and
·
total
hours worked defined as the total number of hours worked for all workers in the
job category by race, ethnicity and sex.
The
time frames of the demographic data in the EEO-1 and the new pay data in the
Equal Pay Report will be different, with the demographic data being based on a
single payroll between July and September, while the payroll information covers
the prior calendar year. OFCCP proposes that
contractors amend the earlier EEO-1 report with compensation data by March 31
of the following year, or suggest that the EEOC permit a single report to be filed
at the end of March in order to have a single reporting period.
Contractors
would be required to keep their Equal Pay Reports for a period of not less than
two years from the date of the making of the report. However, if the contractor
has fewer than 150 employees or does not have a contract of at least $150,000,
this retention period is one year.
While
W-2 payroll data may be readily available for most employers, calculating hours
of work may be more problematic for exempt employees since there is no FLSA
requirement to track those hours. OFCCP proposes calculating hours worked as
follows:
·
For salaried workers, contractors should
provide actual hours of work ifthe contractor records actual hours. This is
required for nonexempt employees but is not required for exempt employees. If
contractors do not have actual hours worked data, they may default to 2080 for
full-time and 1040 for part-time.
·
For
hourly workers, actual hours of work.
·
Reported
hours may also be adjusted for part year work using date of hire or dates of
leave as well, but this is not specifically required.
§
60-1.7 Reports and other required information.
(a)
EEO-1 Report.
(1)
Each prime contractor and subcontractor shall file annually, on or before
September 30, complete and accurate reports on Standard Form 100 (EEO– 1)
promulgated jointly by the Office of Federal Contract Compliance Programs and
the Equal Employment Opportunity Commission (EEOC), or such form as may
hereafter be promulgated in its place, if such prime contractor or subcontractor—
(i)
Is not exempt from the provisions of these regulations in accordance with §60–1.5;
(ii)
Has 50 or more employees;
(iii)
Is a prime contractor or first tier subcontractor; and
(iv)
Has a contract, subcontract or purchase order amounting to $50,000 or more or
serves as a depository of Government funds in any amount, or is a financial
institution which is an issuing and paying agent for U.S. savings bonds and
savings notes [but on the Treasury Department issues savings bonds these days];
(2)
Provided, That any subcontractor below the first tier that performs construction
work at the site of construction shall be required to file such a report if it meets
the requirements of criteria specified in paragraph (a)(1) of this section.
(3)
Each contractor required under paragraph (a)(1) of this section to file the
EEO-1 Report(s) must submit a copy of its most recently filed report(s) to the
contracting or administering agency within 30 days after the award of a
contract, unless the contractor has submitted its EEO-1 Report(s) to the
contracting or administering agency within 12 months preceding the date of the
award.
(b)
Equal Pay Report. (1) The Equal Pay Report, promulgated by OFCCP, requires contractors
and subcontractors with more than 100 employees to provide summary data on the
compensation paid to employees by sex, race, ethnicity, specified job
categories, and other relevant data points. Contractors must submit the Equal
Pay Report in the format and manner required by OFCCP.
(2)
Who must file the Equal Pay Report. The Equal Pay Report must be filed by each prime
contractor and first tier subcontractor that is required under paragraph (a)(1)
of this section to file the EEO-1 Report(s) with the Joint Reporting Committee
that has more than 100 employees, and a contract, subcontract, or purchase
order amounting to $50,000 or more that covers a period of at least 30 days,
including modifications.
(3)
How, when, and where to file the Equal Pay Report. (i) The Equal Pay Report must
be filed by the date specified in the report.
(ii)
Each contractor must submit the Equal Pay Report electronically through OFCCP’s
web-based filing system by the specified filing deadline, unless the contractor
has been granted a hardship exemption under paragraph (b)(3)(iii) of this
section.
(iii)
The Director may grant a hardship exemption from the requirement to submit the Equal
Pay Report electronically where he or she concludes that electronic filing
would impose an undue hardship on the contractor. Requests for hardship
exemptions are only considered upon the written request of the contractor. The
eligibility criteria and application procedures for the hardship exemption are
available on the OFCCP website.
A
contractor granted a hardship exemption must submit the Equal Pay Report in the
format specified in the notification granting the exemption.
(4)
Confidentiality of the Equal Pay Report. (i) OFCCP will treat information contained
in the Equal Pay Report as confidential to the maximum extent the information is
exempt from public disclosure under the Freedom of Information Act, 5 U.S.C.
552. It is the practice of OFCCP not to release contractor data where:
(A)
The contractor is still in business; and
(B)
The contractor indicates, and through the Department of Labor’s review process
it is determined, that the data are confidential and sensitive and that the
release of
data
would subject the contractor to commercial harm.
(ii)
OFCCP may publish aggregate information based on compensation data
collected
from the Equal Pay Report, such as ranges or averages by industry, labor market,
or other groupings, but only in such a way as not to reveal any particular establishment’s
or individual employee’s data.
(c)
Additional information. The Director or the applicant, on their motions, may require
a contractor to keep employment or other records and to furnish, in the form requested,
within reasonable limits, such additional information about its employment practices
as the Director or the applicant deems necessary for the administration of the Order.
In accordance with the existing obligations in 41 CFR 60-1.12(a), each
contractor shall retain its Equal Pay Report for a period of not less than two
years from the date of the making of the report. However, if the contractor has
fewer than 150 employees or does not have a contract of at least $150,000, this
retention period is one year.
(d)
Requirements for bidders or prospective contractors—
(1)
Certifications and representations of compliance with the requirements of
Executive Order 11246 and its implementing regulations. Each agency shall
require each bidder or prospective prime contractor and proposed subcontractor,
where appropriate, to represent by a statement in the bid or in writing at the
outset of negotiations for the contract:
(i)
Whether it has participated in any previous contract or subcontract subject to the
Equal Opportunity Clause in § 60-1.4(a);
(ii)
Whether it is currently required to develop affirmative action programs as prescribed
under the regulations in this chapter and to file reports set forth in this
section;
(iii)
And, if so, whether it developed the affirmative action programs;
(iv)
Whether it has filed with the Joint Reporting Committee all reports due under the
applicable filing requirement; and
(v)
Whether it currently holds a Federal contract or subcontract that requires the filing
of an Equal Pay Report(s) with OFCCP, and whether it filed an Equal Pay Report with
OFCCP for the most recent reporting period, as prescribed by paragraph (b) of
this section.
(2)
Additional information. A bidder or prospective prime contractor or proposed subcontractor
shall be required to submit such information as the Director requests prior to
the award of the contract or subcontract. When a determination is made to award
the contract or subcontract to a specific contractor, that contractor shall be
required, prior to award, or after the award, or both, to furnish such other
information as the applicant or the Director requests.
(e)
Sanctions for failure to file required reports, and certifications and
representations.
Failure
to file timely, complete and accurate reports, and certifications and representations
as required under this section constitutes a violation of Executive Order 11246
and its implementing regulations that may subject the contractor to the
sanctions identified in paragraph (6) of the Equal Opportunity clause in §§
60-1.4(a) and (b) and 60-1.27.
(f)
Use of reports. Reports filed pursuant to this section shall be used only in connection
with the administration of Executive Order 11246, the Civil Rights Act of 1964,
or in furtherance of the purposes of the Order and the Act.
NOTICE: This summary is designed
merely to inform and alert you of recent legal developments. It does not
constitute legal advice and does not apply to any particular situation because
different facts could lead to different results. Information here can change or
be amended without notice. Readers should not act upon this information without
legal advice. If you have any questions about anything you have read, you
should consult with or retain an employment attorney.
