It's "Pay Transparency" handbook amendment time for affirmative action employers, with a supplemental poster requirement

Posted on 10/20/2015 at 12:55 PM by Russell Samson

On September 11, 2015, the Office of Federal Contract Compliance Programs (OFCCP) published its final rule implementing Executive Order 13665.  E.O. 13665 prohibits federal government contractors and subcontractors from discriminating in any manner against employees or job applicants who inquire about, discuss, or disclose their own compensation or the compensation of other employees or applicants.  In promulgating the final rule, the OFCCP asserted that, All nonexempt Federal contractors with contracts, subcontracts, federally assisted construction contracts or subcontracts in excess of $10,000 are required to comply with this final rule. Thus, title of the post notwithstanding, the rule extends to contractors and subcontractors whose contract may be of a size that they are not required to have an affirmative action plan. 

The rule extends its protection to almost all employees, with some very narrow exceptions identified in the Statement quoted below.  That is, as the comments to the final rule make clear, the protections of E.O. 13665 extend to individuals in the private sector (e.g., supervisors) who may be outside the National Labor Relations Acts protections for discussions about pay. Handbook Amendment Under new section 41 CFR § 60-1.35(c), effective on January 11, 2016, federal government contractors and subcontractors, are going to be required to: . . . disseminate the nondiscrimination provision, using the language as prescribed by the Director of OFCCP, to employees and applicants: (1) The nondiscrimination provision shall be incorporated into existing employee manuals or handbooks; and (2) The nondiscrimination provision shall be disseminated to employees and applicants.

Dissemination of the provision shall be executed by electronic posting or by posting a copy of the provision in conspicuous places available to employees and applicants for employment. The language that is to be used for these nondiscrimination statements regarding compensation in handbooks, manuals and postings is available here. It reads: PAY TRANSPARENCY POLICY STATEMENT The contractor will not discharge or in any other manner discriminate against employees or applicants because they have inquired about, discussed, or disclosed their own pay or the pay of another employee or applicant.  However, employees who have access to the compensation information of other employees or applicants as a part of their essential job functions cannot disclose the pay of other employees or applicants to individuals who do not otherwise have access to compensation information, unless the disclosure is (a) in response to a formal complaint or charge, (b) in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or (c) consistent with the contractors legal duty to furnish information. Poster Supplement Now, New Poster Coming in the Future

At the time this post is written, there is no formally-promulgated, separate poster for E.O. 13665.   Employers are most certainly familiar with the EEOCs Equal Employment Opportunity is the Law poster, which is to be posted under Title VII regardless of ones status as a federal government contractor or subcontractor.  That current poster has a section devoted to informing the reader of certain obligations of Employers Holding Federal Government Contracts or Subcontracts. However, the OFCCP reports that it will take necessary steps toward producing a new EEO is the Law poster. The OFCCP cannot unilaterally amend the current EEO is the Law poster (EEOC-P/E-1 Revised 11/09.) However, the OFCCP has disseminated a supplement to the EEOCs EEO is the Law poster, which federal government contractors and subcontractors (at least) are to post with the general poster beginning  January 11, 2016.  As this is being written, the supplement is available only in English, here. Posting the EEO is the Law poster with the supplement will not eliminate the obligation to publish the prescribed nondiscrimination provisions in employee manuals and handbooks.  80 Fed.Reg. No. 176, p. 54949 (9/11/2015).  Both the handbook amendment and the supplemental poster are required.

The material in this blog is not intended, nor should it be construed or relied upon, as legal advice. Please consult with an attorney if specific legal information is needed.

- Russ Samson


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