The DOL’s Office of Federal Contract Compliance Programs (“OFCCP”) has been very active in 2015 not just issuing regulations and guidance relating to protected veteran status, but also relating to sex discrimination, pay transparency, and reasonable accommodations in federal contracting. The purpose of the OFCCP is to enforce, for the benefit of job seekers and wage earners, the contractual promise of affirmative action and equal employment opportunity required of those who do business with the Federal government. Below is a summary of the OFCCP’s pay transparency regulations, final proposed sex discrimination regulations, and guidance for disabled applicants and employees of federal contractors who may need a reasonable accommodation.
A. OFCCP’S Pay Transparency Rule
On September 11, 2015, the OFCCP published a Final Rule to help renew the promise of equal pay for equal work among the millions of employees working for covered federal contractors. The Final Rule implements Executive Order (EO) 13665, signed by President Barack Obama on April 8, 2014. The Final Rule becomes effective on January 11, 2016, and it applies to covered contracts entered into or modified on or after that date.
The Final Rule prohibits federal contractors from discharging or discriminating against employees or applicants who inquire about, discuss, or disclose their own compensation or the compensation of another employee or applicant. This protection would typically apply where the applicant or employee obtains this information through ordinary means, such as conversations with co-workers or an anonymous note from a co-worker. The rule will also contribute to reducing pay discrimination and ensuring that employees receive fair compensation by enhancing the ability of federal contractors and their employees to detect and remediate unlawful discriminatory practices. Although both the NLRA and the Final Rule prohibit contractors from discriminating against employees and job applicants who discuss or disclose their own compensation or the compensation of other employees or applicants, there are differences in the extent of the protections. Unlike the NLRA, the Final Rule extends protections to supervisors, managers, agricultural workers, and employees of rail and air carriers.
More information about the Pay Transparency Rule can be obtained at http://www.dol.gov/ofccp/regs/compliance/faqs/PayTransparencyFAQs.html#Q7
B. OFCCP’s Final Proposed Sex Discrimination Regulations
On October 29, 2015, the OFCCP submitted its final sex discrimination regulations to the Office of Management and Budget (OMB) for review. Submitting the proposed regulations to the OMB brings the regulations one step closer to finalization. Why is OFCCP proposing new sex discrimination regulations?
The OFCCP explained that the existing sex discrimination regulations were adopted in 1970 and have not been substantively changed since then. Since 1970, employer policies and practices, the nature and extent of women’s participation in the labor force, and applicable statutes and case law have changed significantly, leaving those guidelines outdated and inaccurate. In fact, some of the guidelines’ provisions deviate from well-established law, and the agency no longer enforces outdated provisions.
At the same time, significant and pervasive workplace discrimination and other barriers to equal opportunity continue to necessitate OFCCP’s enforcement of sex discrimination laws. The proposed regulations are necessary to address present-day workplace practices and issues and to align contractors’ obligations with current law.
Further, the OFCCP says that the new provisions will deliver on the Administration’s commitment to help working families feel more secure in a world of constant economic change. For example, the proposed regulations would make it clear that contractors may not deny equal wages, benefits, or other forms of compensation, or equal access to earnings opportunities, on the basis of sex. The proposed regulations would also ensure that contractors provide workplace accommodations, such as extra bathroom breaks and light-duty assignments, to employees affected by pregnancy, childbirth, and related medical conditions, comparable to the accommodations that contractors provide to other workers similar in their ability or inability to work, such as employees with disabilities or occupational injuries.
Moreover, by clarifying contractors’ obligations under current law and removing conflicting regulatory provisions, the new streamlined provisions would also promote economy and efficiency for federal contractors — and simple good governance.
The key provisions of the proposed regulations would:
- Clarify that adverse treatment of an employee because of gender-stereotyped assumptions relating to family caretaking responsibilities is discrimination.
- Clarify that leave for childcare must be available to men on the same terms as it is available to women.
- Confirm that contractors must provide a variety of workplace accommodations, ranging from extra bathroom breaks to light-duty assignments, to women affected by pregnancy, childbirth, and related medical conditions comparable to the accommodations that contractors provide to other workers similar in their ability or inability to work, such as employees with disabilities or occupational injuries.
- Clarify that unlawful compensation discrimination can result from job segregation or classification on the basis of gender, not just unequal pay for equal work.
- Confirm that contractors must provide equal benefits and equal contributions for male and female employees participating in fringe-benefit plans.
- Address both quid pro quo and hostile-environment sexual harassment, and identify as a best practice that contractors develop and implement procedures to ensure an environment in which all employees feel safe and welcomed, are treated fairly, and are not harassed because of sex.
- Clarify that adverse treatment of employees because they do not conform to gender norms and expectations about their appearance, attire, or behavior, is unlawful sex discrimination.
- Clarify that discrimination against an individual because of her or his gender identity is unlawful sex discrimination.
Further, while most employers already accommodate a pregnant worker who asks for accommodations like more frequent breaks, a stool to sit on, or a temporary light-duty assignment, the proposed regulations would require federal contractors to provide such accommodations if they provide the accommodations to non-pregnant employees who are similar in their ability or inability to work.
For more information on the proposed sex discrimination regulations, go to http://www.dol.gov/ofccp/SDNPRM
C. OFCCP’s Reasonable Accommodation Pocket Card
On October 19, 2015 the DOL’s OFCCP announced its newly created “Requesting a Reasonable Accommodation” pocket card. The pocket card helps applicants, employees and other interested parties understand the process for requesting a reasonable accommodation. The card uses simple language and answers these four common questions about seeking a reasonable accommodation:
- What is a reasonable accommodation?
- How do I request a reasonable accommodation?
- What do I need to tell my employer?
- What happens after the request is made?
The pocket card is a part of OFCCP’s continuing outreach and education efforts to stakeholders regarding their rights under Section 503 of the Rehabilitation Act and is available on the OFCCP’s website at http://www.dol.gov/ofccp/posters/ReasonableAccommodationPocketCard/index.htm