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Sep 02, 2021

AFFIRMATIVE ACTION: OFCCP will review Component 2 pay data after all

Affirmative Action 

The Office of Federal Contract Compliance Programs (OFCCP) has reversed course and announced that it intends to analyze compensation data that employers submitted in “Component 2” of the EEO-1 Report for calendar years 2017 and 2018. After a hard-fought legal battle, employers with 100 or more employees were required to submit information on employees' pay and hours, sorted by race/ethnicity and gender into ten job categories for those two years. As we previously reported, the agency had decided in the waning months of the prior administration that the data wasn't sufficiently detailed to be valuable. In contrast, the agency under the current administration thinks the data may be useful after all. OFCCP speculates that the data might help it investigate potential pay discrimination and identify neutral criteria to select federal contractors for audits (86 Fed Reg 49354, Sept. 2, 2021).

Tips: It will be very interesting to see what conclusions the OFCCP draws from reviewing the data. We previously reported in July 2020 that the Equal Employment Opportunity Commission (EEOC) commissioned an independent study to review the data, with the goal of finishing up by December 2021. We'll report on what the EEOC and eventually the OFCCP conclude after their reviews. In the meantime, pay equity concerns will continue to be a topic of interest to government enforcers as well as plaintiffs' attorneys. For more information, see our Legal Guide, Equal Pay: Avoid the Pitfalls.

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