OFCCP

Chief Judge Royce Lamberth’s 46-page decision in United Space Alliance, LLC v. Solis, No. 11-746 (D.D.C. Nov. 14, 2011), introduces new uncertainties for contractors facing OFCCP investigations. The case arose from a 2009 OFCCP desk audit of United Space Alliance’s facility in Cape Canaveral, Florida. Applying DOL’s established practices to the initial compensation data provided by United Space Alliance revealed no discriminatory pattern. But DOL sought additional information because “it appeared that women were earning less more frequently than men.”  United Space Alliance refused, calling the request “unjustified.”

Activity by the Office of Federal Contract Compliance Programs points directly toward a new focus on discrimination in employee compensation. A settlement with AstraZeneca involving pay disparities averaging only $1,700 requires the company to conduct additional statistical analyses of pay for hundreds of employees. OFCCP rescinded the 2006 standards for assessing pay discrimination and published an advance notice of proposed rulemaking announcing a…

On July 7, 2011, the Department of Labor released its regulatory agenda for the next 6-12 months.  The agenda for the Office of Federal Contract Compliance Programs (OFCCP) contains five items:  compensation, construction, veterans, disabilities, and sex discrimination.  OFCCP hosted a live Q&A session on its regulatory agenda on July 12, confirming its new aggressive approach.

On June 28, 2011, the Office of Federal Contract Compliance Programs (OFCCP) released a new directive specifically authorizing the use of Functional Affirmative Action Programs (FAAPs) and detailing applicable procedures.  While most covered contractors prepare affirmative action plans based on establishment, some contractors (typically, very large, multi-establishment companies) conclude that an affirmative action plans based on function or unit (such as sales, or R&D), which cut across establishments, more appropriately analyze the workforce.

The FAR Councils have adopted a final rule [pdf] revising the categories of veterans protected by federal equal opportunity laws. The rule updates the FAR to reflect Department of Labor regulations addressing equal opportunity requirements for veterans. The FAR amendments identify four categories of veterans: disabled veterans, recently separated veterans, armed forces service medal veterans,…

The Office of Federal Contract Compliance Programs is proposing changes to the standard-form Scheduling Letter that will impose significant new burdens on contractors. The proposed changes would require contractors to provide their leave policies (including their entire employee handbook), more detailed demographic and compensation data, as well as the last three years of VETS-100/VETS-100A reports.…

Developments in the OFCCP’s investigation of compensation disparities at United Space Alliance, LLC are worthy of consideration. During a 2009 desk audit, OFCCP conducted a standard threshold test of United Space Alliance’s compensation data.  Although this audit uncovered no indicators of pay discrimination, OFCCP conducted additional tests of the data, commonly known as the “pattern analysis” and the “30 and 5 Refinement” tests. These tests revealed potential pay bias, and OFCCP requested more extensive compensation data to examine the question more closely. The case begins when United Space Alliance refused to comply with OFCCP’s request.

On April 26, 2011, the Office of Federal Contract Compliance Programs formally proposed regulations to update contractor affirmative action obligations concerning veterans. The proposed rules impose additional obligations on covered federal contractors and subcontractors. For the first time, OFCCP is seeking to impose quantitative measurements to assess the hiring of protected veterans, self-identification invitations…