On April 29, 2014, the OFCCP held a “listening session” to discuss the forthcoming regulations addressing President Obama’s Executive Order on pay discrimination and memorandum on contractor compensation data collection.  During this meeting, a limited number of invited stakeholders (federal contractor representatives and affiliated organizations, lawyers, and consultants) provided input on both the compensation data collection tool and the non-discrimination mandate regarding employees who discuss their pay.  Interestingly, despite OFCCP Director Shiu’s assurances that that the input provided by these stakeholders would be given thoughtful consideration, the NPRM for the compensation data collection tool was sent to OMB on May 5, 2014 – less than one week after the “listening session.”

The rule was submitted as not significant, as defined under the Administrative Procedures Act.  If OMB’s Office of Information and Regulatory Affairs (OIRA) agrees that it is not significant, it will have 10 working days to notify OFCCP whether it wants to review the rule (*OIRA reviews any potential regulations that are "significant" being that they have at least a $100 million effect on the economy). The 60-day comment period is when contractors can give OFCCP their opinions on the proposed regulation. If the rule is determined to be significant, OIRA will have 90 days to review the NPRM and other documents required for significant rules. Based on the attention generated by the issuance of the Executive Order and the memorandum, it is likely that the NPRM will be published as early as June. If that happens, the 60 day comment period will commence and extend into August.  Therefore, it will be unlikely that any updates will be provided during the NILG conference in Washington, DC.  After the comment period, there is a 30 day window for comment review. Once approved, we expect that there will be some lead time for contractors to achieve compliance.

Based on no inside information whatsoever, DCI speculates that the NPRM will outline a new compensation data collection tool that asks contractors to report W2 earnings, tenure, and hours worked by census occupational code. DCI further speculates that federal contractors will be required to report this information every other year, as opposed to annually.  In addition, it is most likely that required data will be uploaded to a system, as opposed to being submitted in any paper-based format.


By Kristen Pryor, M.S., Associate Consultant and Yevonessa Hall, M.P.S., Consultant at DCI Consulting Group

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