Compensation, jurisdictional issues, and an attack on a well-known pre-employment assessment tool have dominated the Office of Federal Contract Compliance Programs' (OFCCP) agenda in recent weeks. The following issues are of great importance to many federal contractors.
Data Collection Tool
On August 9, 2011, OFCCP published an Advanced Notice of Proposed Rulemaking (ANPRM) soliciting comments on the agency's development of a data collection tool. This document would be in addition to the EEO-1 report, the VETS-100A report, and the itemized listing sent to contractors scheduled for a compliance evaluation. Citing the eradication of a gender-based "pay gap" as one purpose of the data collection tool, OFCCP suggests that the tool could be used for "nationwide multi-establishment" compliance reviews and could be required of businesses bidding on federal work. Of interest to all employers - not just federal contractors - is the Equal Employment Opportunity Commission's concurrent initiative through the National Research Council to develop a pay data instrument for all employers subject to Title VII of the Civil Rights Act.
U.S. Savings Bonds
The U.S. Treasury Department has announced that financial institutions will no longer sell U.S. Savings Bonds as of January 1, 2012. This new development could exempt certain banks and credit unions that are subject to OFCCP's jurisdiction solely because they sell and/or redeem U.S. Savings Bonds and notes. Financial institutions that serve as federal depositories still will be subject to the affirmative action requirements regulated by OFCCP after January 1, 2012.
In the same jurisdictional vein, the National Defense Authorization Act for Fiscal Year 2012 would exempt from OFCCP's regulations any health care providers that participate in or receive reimbursement from the TRICARE program. This would be a blow to OFCCP's ongoing position that TRICARE and similar programs created affirmative action obligations for health care providers.
Finally, OFCCP recently filed suit against a manufacturer for its allegedly discriminatory use of WorkKeys, a pre-employment assessment tool frequently endorsed by state and local governments. The company claims that WorkKeys is "valid and legal"; however, OFCCP's administrative complaint asserts that use of WorkKeys has an adverse impact on African-American, Asian and Hispanic workers. Sure to be a closely-watched case, contractors would be well-served to evaluate the use of any pre-employment assessments, ensure consistent and well-documented recordkeeping, and be prepared to defend such measures as "job-related and consistent with business necessity" if adverse impact is detected.