2016 was filled with the Obama Administration ending the year with an aggressive regulatory environment. These new regulations are a major concern for CEOs across the country, as new regulations are expensive to implement in terms of compliance, making the net cost to implement some to these regulations prohibitive for some companies. Add to this, the fact that many of these regulations have been fast-tracked through an approval process with little thought going into how the government will actually implement and test for compliance.
In this year-end review, Career Resources, Inc. has summarized the most pertinent information that was applicable to federal contractors in 2016 and what contractors can anticipate in 2017.
Revised EEO-1 Report
On January 29, 2016, the Equal Employment Opportunity Commission (EEOC) proposed a controversial revision to the EEO-1 Report. The revision would require employers to report to the federal government the number of hours worked and summary pay (that will be grouped in “pay bands” established by the EEOC) broken down by gender, ethnicity, and race. In September, the EEOC issued a press release stating the revised EEO-1 reports would go into effect in March of 2018, much to the dismay of the contractor community. The EEOC has ignored the recommendations and concerns from the National Research Council’s study and they have also ignored their responsibilities under the Paperwork Reduction Act.
Advice: Contractors should brace themselves and prepare for the significant increase in hours it will take to collect the data and file the revised EEO-1 reports. In addition, contractors should ensure that their systems have the capability to generate the data that the New EEO-1 Report will require.
Final Rule on Overtime Regulations
On May 18, 2016, President Barak Obama and Secretary Thomas Perez announced the publication of the Department of Labor’s (DOL) final rule on overtime regulations. The final rule was set to go into effect December 1, 2016, and would immediately impact over 4 million workers in its first year. While the President and advocates of the Final Rule praised the benefits the revised overtime regulations would have on the working middle class, it was clear there would also be a devastating impact on the economy and employers.
Updates: November 22, 2016 – A Texas federal judge put a halt to the DOL’s new overtime rule. The court’s decision was a welcomed relief to employers who were struggling to make the necessary reductions in their workforce, cut hours and make other changes as they braced for the impact that another Obama Rule would have on budgets and workplace flexibility.
December 1, 2016 – An appeal was filed by the DOL to the federal judge regarding the decision to block the overtime rule. The DOL has requested an expedited hearing, hoping to have the appeal heard prior to inauguration day on January 20th. The odds of expediting the hearing or of the new administration supporting the Overtime Rule are slim, meaning we will likely see the end of the Overtime Rule as it is currently worded.
Advice: For now, the halt on the final rule will allow the incoming Trump Administration more time to make changes, such as issuing a more reasonable salary threshold or possibly even eliminating the rule altogether (it will most likely be eliminated). Employers are being advised to continue on the course of action they have already taken in terms of the final rule. For example:
- If you have not already implemented changes, you may want to postpone reclassifying your employees and monitor the policy developments closely. Remember that the recent injunction does not require employers to implement changes by December 1, 2016.
- If your company has already raised salaries to meet the proposed threshold, you might keep those in place to prepare for future changes.
Executive Orders Impacting Federal Contractors
Executive Orders (EO) were a major focus of the Obama administration in 2016, EOs were issued, modified, and some even interrupted. With the high frequency of EOs and other regulatory changes, it has been nearly impossible for federal contractors to keep up, not to mention trying to interpret and implement them.
Executive Order 13658
The increase of the minimum wage to $10.15 per hour went into effect on January 1, 2016. The minimum wage for tipped employees working under federal contracts has increased by $.95 per hour, from $4.90 in 2015 to $5.85 in 2016. This increase will continue annually.
Beginning January 1, 2017, the minimum wage for federal contractors will be increased to $10.20 per hour and covered tipped employees will be increased to $6.80 per hour.
Executive Order 13665
The Pay Transparency final rule went into effect on January 11, 2016.
EO 13665 prohibits federal contractors and subcontractors from discriminating against or terminating employees for discussing their pay or the pay of their coworkers and prohibits discriminating against applicants for discussing pay. Contractors are required to post the “EEO is the Law” Poster Supplement and the OFCCP’s Pay Transparency Policy Statement.
Executive Order 13706
On Labor Day last year, President Obama signed an EO that will require paid sick leave for employees of federal contractors and subcontractors. EO 13706 requires certain employers who contract with the federal government to provide their employees with up to seven days of paid sick leave annually, including time off needed to care for a family member and absences resulting from sexual assault, domestic violence, and stalking.
Executive Order 13673
Updates were made to the July 2014 Fair Pay and Safe Workplaces final rule, commonly referred to as the “blacklisting” rule. The rule currently consists of three components: a certification obligation, pay transparency, and a requirement for contractors to disclose labor violations and decisions of 14 federal workplace laws and state equivalents used in determining whether to award contracts or subcontracts valued at $500,000 or more.
Update:On October 24, 2016, the U.S. District Court for the Eastern District of Texas issued a preliminary injunction preventing certain provisions of the regulations from going into effect.
On October 25, 2016, the Office of Federal Procurement Policy (OFPP), within the Office of Management and Budget (OMB), issued a memorandum to all senior procurement executives, directing agencies and federal chief acquisition officers to “take all steps necessary to ensure the enjoined sections, provisions, and clauses of the final rule are not implemented until further notice.”
VEVRAA Annual Hiring Benchmark was lowered to 6.9%
Effective March 4, 2016, the OFCCP lowered the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) benchmark for hiring protected veterans to 6.9%. The decreased benchmark is down slightly from the prior year’s benchmark of 7%.
New Development Regarding the 2016 Filing of VETS 4212 Reports
Per the Federal Acquisition Regulation (FAR), the threshold for the VEVRAA filing increased from $100,000 to $150,000 and went into effect with the filing of 2016 VETS 4212 reports.
OFCCP Sex Discrimination Guidelines Updated
On August 15, 2016, the Final Rule updating Sex Discrimination Guidelines went into effect. The Sex Discrimination Guidelines address issues such as sexual harassment, workplace accommodations for pregnant employees, compensation discrimination, protections for transgender workers, and more.
Top New Lawsuits
- OFCCP Sues B&H Foto for Discrimination
- OFCCP Sues Enterprise Rent–A–Car for Discrimination
- OFCCP Sues Potomac Abatement for Discrimination
- OFCCP Sues Silicon Valley Company Palantir Technologies for Discrimination
- OFCCP Sues Analogic Corporation for Discrimination
- Gordon Food Service Settles Hiring Discrimination Case with DOL-$1.85
- MJennie–O Turkey Store Settles Hiring Discrimination Case with DOL-$492K
- Aqualon Company Settles Hiring Discrimination Case with DOL-$175K
- Norfolk Southern Settles Hiring Discrimination Case with DOL-$492K
- Colonial Parking Settles Hiring and Pay Discrimination Case with DOL-$250K
- Hewlett–Packard Settles Hiring Discrimination Case with DOL- $750K
- Genlyte Thomas Group Settles Pay Discrimination Case with DOL- $275K
- Tyson Foods Settles Hiring Discrimination Case with DOL-$1.6M
- Chemonics International, Inc. Settles Hiring Discrimination Case with DOL- $482K
Director Shiu Steps Down
In late October, Office of Federal Contract Compliance Programs (OFCCP) Director Patricia Shui announced, during an Equal Opportunity Commission (EEOC) meeting, she was ending her tenure as the Director of the OFCCP. Director Shui stepped down on November 6, 2016, and shortly after, Thomas M. Dowd was named the Acting Director of the OFCCP in her place.
A Donald Trump Administration & What to Expect Moving into 2017
At this point, what will happen in 2017 is speculation; while neither candidate spoke in-depth on specific contracting issues, Donald Trumps’ victory will more than likely bring relief to federal contractors. During his campaign, President-Elect Trump made a promise to get rid of “job-killing” regulations. This will most likely lead to the reversal of many of the dozens of Executive Orders (EO) put in place by President Obama, EOs that have been costly and burdensome for federal contractors. Federal contractors have consistently struggled to keep up with the stream of EO’s and new regulations coming at them over the last eight years. While there are clear signs that many of Obama’s EOs could soon be on the chopping block, some EOs that have already passed the regulatory process may ultimately be modified or eliminated entirely. Despite any potential changes with regard to EOs, federal contractors must remember that compliance is still mandatory.
On the Horizon
- January 1, 2017 – based on EO 13658, the minimum wage rate will increase to $10.20 per hour and tipped employees must be paid a minimum wage of $6.80 per hour.
- January 1, 2017 – EO 13706 for paid sick leave goes into effect for new contracts and replacements for expiring contracts with the Federal Government.
- Expect a decision on the Overtime Rule in early 2017.
- A new director will be chosen for the OFCCP in 2017.
- Expect to see changes with the new presidential administration.
- Revised EEO-1 reports will go into effect March 2018.
With guaranteed changes on the horizon for 2017, it’s more important than ever for federal contractors to monitor the Trump Administration’s position on all of these new regulations.
For the first time in years OFCCP will need to justify their existence, the panic the agency will feel under a Trump administration will create an atmosphere of desperation and the need to produce bigger settlement numbers. We anticipate 2017 to be a tumultuous year as many of these regulations either stay in force as is, are rewritten or rescinded. We expect audits to be more unpredictable as the year progresses with less consistency between the Regions and District Offices. We encourage our clients to update their affirmative action plans and consult with CRI to ensure the compliance of federal regulations. If you need assistance with your affirmative action plans or obligations, you can contact CRI at email@example.com.