Employers: Beware of Significant OFCCP and EEOC Upcoming Deadlines

Employers should prepare for significant deadlines established by the Office of Federal Contract Compliance Programs (OFCCP) and the Equal Employment Opportunity Commission (EEOC). The deadlines include: (1) certification of compliance with the applicable affirmative action requirements by June 29, (2) use of a new invitation to self-identify disability by July 25, and (3) submission of Form EEO-1 by the anticipated fall deadline. 

OFCCP Compliance

The OFCCP is the federal agency within the Department of Labor that monitors and enforces compliance with federal anti-discrimination law by “federal contractors.” Many banks are considered federal contractors, and the certification requirement applies to financial institutions with 50 or more employees. Federal contractors must use the OFCCP Contractor Portal to certify compliance with the applicable affirmative action requirements. The certification requirements were addressed in our previous client alert.

Additionally, the OFCCP has revised the Voluntary Self-Identification of Disability Form. The revised form includes preferred language for disabilities and additional examples of conditions that may be considered disabilities under applicable law. The revised form must be used by July 25. The model form (or an employer-generated variation) is used to collect disability data for affirmative action and other compliance purposes. Employers should review their procedures to ensure invitations to self-identify comply with the new requirements.

Form EEO-1

The EEO-1 Component 1 report is a mandatory annual data collection that requires all private sector employers with 100 or more employees, and federal contractors with 50 or more employees meeting certain criteria to submit demographic workforce data, including data by race/ethnicity, sex and job categories. The 2022 EEO-1 Component 1 data collection is tentatively scheduled to open in mid-July. Updates regarding the 2022 EEO-1 Component 1 data collection, including the opening date, will be posted to the EEOC website as they become available. 

EEO-1 Component 1 data has been the subject of much debate given the OFCCP’s decision to disclose the information in response to a Freedom of Information Act (FOIA) request from the Center for Investigative Reporting. Many employers consider the data in EEO-1 reports to be sensitive and confidential. As a result, numerous employers submitted objections to the disclosure of this information in late 2022. Earlier this year, the OFCCP disclosed the information of non-objecting employers. However, the agency did not disclose the information of employers that submitted timely objections and extended the deadline for submission of objections to March 2023. The OFCCP has not made a final decision on whether it will disclose the Component 1 data of objecting employers.  However, the data of non-objecting employers may be subject to disclosure.

Please contact Karleen Green or any member of Phelps’ Labor and Employment team if you have questions or need compliance advice and guidance.