Here they go again. Undeterred by the failure of the EO Survey five years ago, on August 10, 2011, the Office of Federal Contract Compliance Programs (“OFCCP”) published an Advance Notice of Proposed Rulemaking (“ANPRM”) soliciting public feedback on development of a new compensation data collection tool. According to the ANPRM, this data collection is intended to identify “potential problems of compensation discrimination . . . that warrant further review or evaluation by OFCCP . . . as well as to identify and analyze industry trends, Federal contractors’ compensation practices, and potential equal employment related issues.” This latest initiative is consistent with OFCCP’s long-standing focus on compensation issues, and is illustrative of the Agency’s recent aggressive efforts to significantly augment its investigative “toolbox” and broaden the obligations imposed on federal contractors and subcontractors.
The ANPRM seeks input on a series of fifteen questions that address the types of data to be collected, the manner in which such data would be organized, and the intended uses of the data. The fifteen questions indicate the OFCCP is considering the following:
- Collecting data used on a very broad definition of compensation, which could include starting salary, current salary, bonuses, commissions, stock options, shift differentials, paid leave, and health and retirement benefits.
- Collecting the data on an individualized basis or aggregated by salary grade or band, EEO-1 categories, job groups, or census occupational codes.
- Using the tool to target specific industries for “industry-focused compensation reviews.”
- Using the data to conduct nationwide reviews of a contractor’s compensation system, across multiple establishments.
- Requiring businesses to submit compensation data as part of the initial bidding process for future government contracts to enable OFCCP to better “target contractors for post-award compliance”.
- Expanding the scope of this data collection tool to include construction contractors as well as service and supply contractors.
While it is too early to predict the precise scope and structure of the compensation data collection tool the OFCCP will ultimately adopt, the one sure bet is that this initiative will have a significant impact on the affirmative action reporting obligations of all federal contractors and subcontractors. We will keep you updated as the OFCCP continues to develop this tool.