Less than two weeks ago we reported that all employers with 100 or more workers in the US would have until September 30 to provide the EEOC with pay data (read more here).

Then, just days later, on May 3rd, the Justice Department appealed the two rulings resurrecting the Obama-era mandate. Ironically, the appeal

All employers with 100 or more workers in the US have until September 30 to provide the EEOC with pay data as part of the annual workforce data report known as the EEO-1.

On April 25, US District Judge Tanya Chutkan accepted the EEOC’s proposal (more here) to make employers submit their 2018 pay data this fall. She also ordered the EEOC to collect a second year of pay data, giving it a choice between collecting employers’ 2017 data or making it collect 2019 data down the road. Her ruling is expected to impact more than 60,000 employers.


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Employers may be required to disclose aggregate pay data in their annual EEO-1 filings as early as May 31, 2019.

On March 4, 2019, a federal court in Washington D.C. lifted the Office of Management and Budget’s (OMB) stay of the revised EEO-1 form that requires companies to submit summary wage data by race/ethnicity and gender. While we expect there may be further challenges and/or delays to the implementation of the revised EEO-1 form, taking a conservative approach means that companies should plan as though they need to report pay data by the current May 31, 2019 deadline.


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Government contractors are familiar with the obligation to retain minority or women-owned businesses as subcontractors to obtain government work. Increasingly, apex private sector businesses require participation by minority or women-owned businesses as a condition of obtaining work, as well.

A recent decision by the federal court for the Southern District of New York is a cautionary tale, and highlights the care required when terminating a minority business enterprise (MBE) sub-contractor. Annuity Funds Operating Engineers Local 15 v. Tightseal, No. 17-CV-3670 (S.D.N.Y. August 14, 2018).


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On February 1, 2018, the Office of Federal Contract Compliance Programs (OFCCP) sent 1,000 Corporate Scheduling Announcement Letters (CSALs) to federal contractors informing them that they may be audited for compliance with federal non-discrimination requirements/affirmative action plans.

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In a move that will surprise few, the federal Office of Management and Budget (OMB) has “stayed” the upcoming EEO-1 compensation data reporting requirement, pending further review. As we previously wrote about here, in 2016, the Equal Employment Opportunity Commission (EEOC) implemented a rule requiring employers with 100 or more employees (and federal contractors with 50 or more employees) to include compensation data in their annual EEO-1 reports. Covered employers were already required to file an EEO-1 report tracking race/ethnicity and sex; the stay does not impact this requirement.
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Before taking office, President Trump vowed to revoke “all illegal and overreaching executive orders.” On March 27, he made good on that vow when he revoked former President Obama’s Executive Order 13673, the Fair Pay & Safe Workplaces rule (“EO”), known by many as the “Blacklisting EO”.
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While no one knows exactly how Donald Trump’s election as President will impact labor and employment laws in the country, it is a safe bet that there will be changes. Because Trump was virtually silent on the campaign trail regarding the specifics of any employment law policies, we are left to speculate on any upcoming changes.  We provide a brief overview of our best educated guesses on what changes could be in store given the election results.  Given Trump’s position on government enforcement and his pro-business stance, there is an expectation of changes to several employment-related laws.
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Title VII and the Equal Pay Act expressly ban the unequal treatment and compensation of female employees. Yet pay inequity can creep in to even the most well-intentioned companies.  As a consequence, standards for evaluating pay practices are rapidly evolving in both the public and private sectors, and many companies are pledging to improve wage equality.  What’s more, with the EEOC now targeting equal pay discrimination, we are primed to see a wave of class action lawsuits that could cost companies millions in back pay and damages.  Is your company keeping up?
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Earlier this month, the National Labor Relations Board issued a memorandum announcing the steps it will take to report complaints alleged against federal contractor employers in order to comply with the Fair Pay and Safe Workplaces Executive Order 13673.  In doing so, the NLRB became the first government agency to implement reporting procedures under the Executive Order, though regulations have not been finalized.  Noteworthy, it appears the NLRB will use the Executive Order’s reporting requirements as a pressure point to further encourage the early settlement of complaints filed against companies.  While it remains to be seen exactly how the Executive Order’s “blacklisting” procedures will impact federal contractors, it is important that companies understand the potential impact of the Executive Order and the planned procedures of the various administrative agencies, including the NLRB, to comply with the Executive Order.
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