Over two years ago, the Northern District of California issued an order requiring the OFCCP to disclose EEO-1 Type 2 reports to the Center for Investigative Reporting (“CIR”) over the objections of thousands of employers, as previously reported. In the interim, OFCCP did not release the reports for those employers who had objected as they appealed the District Court’s decision to the Ninth Circuit. In 2025, the Ninth Circuit affirmed the District Court’s decision that the EEO-1 reports did not contain “commercial” information that would be protected from disclosure pursuant to an exemption under the Freedom of Information Act (“FOIA”). The case remains pending in the District Court with other issues to be resolved. However, the Ninth Circuit’s decision became final after the OFCCP chose not to seek rehearing of the issue – and the parties filed a stipulated proposal with the District Court regarding the end of the stay of the release of the reports. The District Court granted the stipulation on February 9, 2026, which will allow for the release of the reports from 2016-2020. The District Court has now ordered the following by February 11, 2026: OFCCP shall release the reports of five “bellwether” objecting contractors which were considered in making the determination of whether the reports contained “commercial information.” OFCCP shall provide notice to the additional 4,500+ objecting contractors that their reports will be released on February 25, 2026. Contact your Polsinelli attorney for further guidance regarding the release of the reports, the potential effect of the release on your organization, and other government contractor matters.

Key Highlights The U.S. Department of Justice (DOJ) filed a lawsuit against the State of Minnesota challenging its affirmative action hiring program. It alleges that Minnesota’s requirement to consider race, sex and other protected characteristics in public employment decisions violates Title VII of the Civil Rights Act of 1964. The case is poised to test the limits of affirmative action in employment and could become a bellwether for similar policies nationwide and across public and private employers. DOJ Targets Minnesota’s Use of Race and Sex in Public Hiring Minnesota law mandates that state agencies take proactive steps to recruit and hire individuals from historically underrepresented groups, aiming to address workforce disparities. In a complaint filed on Jan.14, 2026, the DOJ asserts that this practice unlawfully favors certain applicants based on protected characteristics. Federal lawyers argue that the mandate amounts to intentional discrimination in violation of Title VII’s ban on making employment decisions because of race, color, religion, sex or national origin. The lawsuit acknowledges past U.S. Supreme Court decisions, such as United Steelworkers v. Weber and Johnson v. Transportation Agency, that permitted limited affirmative action plans to remedy persistent inequality. The DOJ, however, contends that those decades-old precedents are outdated and conflict with both Title VII’s text and the Supreme Court’s 2023 decision ending race-conscious college admissions. By certifying the Minnesota case as one of “general public importance,” the DOJ also seeks a special three-judge panel to hear the matter pursuant to 42 U.S.C. § 2000e-6(b), which would fast-track any appeal directly to the Supreme Court. Broader Implications for Employers and State Diversity Initiatives The Department’s challenge signals increased scrutiny of government-mandated diversity, equity and inclusion initiatives. Many employers have already grown more cautious with voluntary diversity programs following Executive Orders issued in 2025, but they were left with some uncertainty on conflicting obligations between federal and state laws. A ruling against Minnesota could further imperil similar state or local requirements for affirmative action in hiring or contracting. If the Supreme Court ultimately curtails or eliminates affirmative action in the employment context, public-sector workforces and contractor practices nationwide may need to adjust accordingly. Polsinelli Labor and Employment attorneys are closely monitoring this case and will advise clients as appropriate as developments unfold.

Key Highlights Under Section 503 of the Rehabilitation Act (Section 503) (extending protection to individuals with disabilities), the basic coverage threshold increased from $15,000 to $20,000. Under the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) (extending protection based on veteran status), the basic coverage threshold increased from $150,000 to $200,000. Although the Affirmative Action Program (AAP) coverage remains the same for Section 503, the AAP coverage requirements increased accordingly for the VEVRAA and now apply to contractors and subcontractors with at least 50 employees and a single contract of $200,000 or more. On October 1, 2025, the Office of Federal Contract Compliance Programs (OFCCP) increased the jurisdictional thresholds for two key federal contractor laws: Section 503 and the VEVRAA. These higher thresholds affect whether a contractor is covered by each law and, as a result, whether it must maintain written AAPs for individuals with disabilities and protected veterans. The increases result from the Federal Acquisition Regulatory Council’s periodic review and inflationary adjustment of “acquisition-related” thresholds in federal procurement statutes as required by Section 807 of the Ronald Reagan National Defense Authorization Act (41 U.S.C. § 1908). As part of its assistance efforts, the OFCCP has issued a “Jurisdictional Thresholds” infographic and updated its webpage with additional guidance and tools. While federal affirmative action plan requirements for women and minorities have changed significantly in 2025, federal contractors are reminded that affirmative action requirements for individuals with disabilities and veterans remain in effect for covered contractors. If you have questions about how these updated thresholds apply to your organization—or whether your contracts and workforce size trigger written AAP obligations—Polsinelli’s Labor and Employment attorneys are available to assist.

What You Need to Know: Washington’s new mini-WARN Act applies to smaller employers with 50 or more full-time employees, unlike the federal WARN Act, which only applies to employers with 100 or more employees. The new mini-WARN Act includes a private right of action and penalties for affected employees against employers who violate the requirements. In addition to applying to smaller employers, the mini-WARN Act has broader notice requirements in comparison to the federal WARN Act and excludes specific employees from being part of mass layoffs. On July 27, 2025, Washington State implemented its own version of the Worker Adjustment and Retraining Notification (WARN) Act, officially titled the Securing Timely Notification and Benefits for Laid-Off Employees Act, commonly referred to as a "mini-WARN Act." The mini-WARN Act is a state-level law that complements the federal WARN Act.  Washington joins thirteen other states (California, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, New Hampshire, New Jersey, New York, Tennessee, Vermont and Wisconsin) in implementing mini-WARN Acts. WARN Acts provide protections for employees facing layoffs or business closures. Key Aspects of the Act Notice Requirement: Under the mini-WARN Act, employers must provide at least 60 days' notice before a mass layoff or business closing (business closings can be permanent or temporary). This notice must be given to affected employees, the state, and local government officials and must contain very specific information (including anything required by the federal WARN Act, information regarding the site affected, contact information, specifics regarding the layoff or closure, anticipated dates, names and job titles for those affected, and information regarding relocation of operations/roles). The mini-WARN Act provides some limited exceptions for faltering companies, unforeseeable business circumstances, and natural disasters. The mini-WARN Act also has certain exceptions related to sales of business and mass layoff for specific construction projects. Who is Covered: The mini-WARN Act applies to employers with 50 or more employees in the state of Washington. This is a broader scope than the federal WARN Act, which only covers employers with 100 or more employees. The mini-WARN Act applies to mass layoffs or business closings affecting 50 or more full-time employees, which is similar to the federal WARN Act; however, the “single site of employment” requirement is different in the mini-WARN Act. Under the federal WARN Act, employee counts are based on separations at a single site of employment for both mass layoffs and business closures. Under Washington’s new mini-WARN Act, the “single site of employment” requirement is only applicable to business closings. In other words, the mini-WARN Act will apply to mass layoffs affecting multiple sites if the total layoffs accumulate to 50 or more. Additionally, of note, under the mini-WARN Act, employees are any people employed in the state of Washington by an employer. Employee Protections: By providing 60 days’ notice of a job loss, the mini-WARN Act aims to give employees time to prepare for job loss, seek new employment, or pursue retraining opportunities. The mini-WARN Act also protects employees currently on leave under Washington Paid Family and Medical Leave law by preventing an employer from including such an employee in a mass layoff. Penalties for Non-Compliance: Employers who fail to comply with the notice requirements may face penalties, including up to 60 days of back pay and benefits for each day of violation for each affected employee, $500 per day in penalties, and attorneys’ fees. Employers should familiarize themselves with the new requirements to navigate this evolving landscape effectively. As the mini-WARN Act takes effect, it is crucial for businesses to review their policies and procedures to ensure compliance, especially prior to layoffs, closures, and reductions in work. For questions and assistance regarding the Washington mini-WARN Act, other state mini-WARN Acts, or the federal WARN Act, please contact your Polsinelli attorney. 

Key Takeaways The U.S. Equal Employment Opportunity Commission 2024 EEO-1 Component 1 Report filing opened on May 20, 2025, with a submission deadline of June 24, 2025, and no extensions being granted. Employers must select a workforce snapshot from October 1, 2024, to December 31, 2024. Filing is mandatory for private employers with 100 or more employees, federal contractors with 50 or more employees and certain affiliated private employers. As anticipated, 2024 EEO-1 Component 1 Report filing officially opened May 20, 2025, on the EEO-1 Data Collection website. The EEOC has expressed that, as part of cost savings, the filing period for EEO-1 data will be shorter than in the past. Specifically, employers will have a deadline for submission of June 24, 2025. It is important to note that no extensions will be granted this year, making timely compliance essential. In addition to the shorter time period for submission, there are additional changes to the 2024 EEO-1 reporting as discussed here. Filing Requirements The EEO-1 Report is a mandatory annual data collection that requires certain employers to submit demographic workforce data, including data by race/ethnicity, sex and job categories. The following entities are required to file: Private employers with 100 or more employees; Federal contractors with 50 or more employees; and Private employers with fewer than 100 employees who are affiliated through centralized control or ownership with other entities, totaling 100 or more employees. To complete their report, employers must select a workforce snapshot from any pay period between October 1, 2024, and December 31, 2024, for both full-time and part-time employees. Compliance Assistance Polsinelli understands the complexities involved in the EEO-1 reporting process and are committed to helping employers meet their obligations efficiently and effectively. If you have questions about EEO-1 reporting, contact Erin Schilling, Shivani Bailey or your Polsinelli attorney.

On May 14, 2025, the Missouri Senate voted 22-11 to repeal portions of Proposition A, the voter-approved initiative that increases the state’s minimum wage and requires employers to provide earned paid sick leave. The legislation repeals two key pieces of Proposition A: The earned paid sick time requirement, which requires employers to provide employees with one hour of earned paid sick time for every 30 hours worked, took effect on May 1. The increase to the state’s minimum wage based on inflation and a rise in the cost of living. Employers who implemented policy changes to meet the paid sick leave requirements now will face the choice of rolling those changes back or leaving them in place. Although Missouri’s minimum wage increased on January 1 of this year and will again increase at the beginning of 2026, these minimum wage increases were not set to increase based on the Consumer Price Index (CPI) until 2027. Accordingly, the increases to minimum wage this year and again in 2026 remain unchanged. Proposition A passed in November 2024 but has faced significant legislative and legal challenges. For instance, several entities brought a lawsuit, alleging the statute violated the Missouri Constitution, among other things. However, on April 29, 2025, the Missouri Supreme Court ruled to uphold Proposition A in Raymond McCarty, et al. v. Missouri Secretary of State, et al., Case No. SC100876. See our earlier blogs on these issues here and here. In the wake of the Missouri Supreme Court’s ruling, Senate Republicans used a rare procedural move to force a vote on the legislation. The bill, passing unchanged through the Senate from the House, will now advance to Governor Kehoe’s desk, and he is expected to sign the legislation into law. If signed, the repeal will become effective on August 28, 2025. Until then, employers must continue to abide by the law as currently written. For questions and assistance regarding compliance with Proposition A and upcoming changes, please contact your Polsinelli attorney.

Key Takeaways The 2024 EEO-1 Report is expected to open May 20 pending approval of the instruction book and justification. The EEO-1 is expected to eliminate the option to report non-binary employees. Employers should confirm how their system collects data on the sex of employees to comply with binary-only gender reporting. On April 15, 2025, the Equal Employment Opportunity Commission (EEOC) submitted its 2024 EEO-1 Component 1 Instruction Booklet and justification to the Office of Information and Regulatory Affairs (OIRA), containing potential changes that may impact employers. This booklet indicates that 2024 EEO-1 Component 1 reporting will begin on Tuesday, May 20, 2025, with the deadline to file on Tuesday, June 24, 2025. The 2024 report will cover employee data from the payroll period between October 1, 2024, through December 31, 2024. These reporting dates remain tentative as OIRA must approve the booklet, which can take 30-60 days from the date of submission. Final dates will be posted on the EEO-1 reporting page. Understanding the EEO-1 Reporting Requirements The EEO-1 is an annual requirement that certain employers submit demographic workforce data, including information on race, ethnicity and sex by job group. The EEO-1 report is required for employers with 100 or more employees and employers with less than 100 employees who are related to other entities, such that combined, there are over 100 employees. Changes are Expected to the 2024 EEO-1 Executive Order 14168: Defending Women From Gender Ideology Extremism And Restoring Biological Truth To The Federal Government could have an impact on EEO-1 reporting, particularly concerning the recognition of sex. Executive Order 14168 reinforced the federal government's stance on recognizing only two sexes—male and female. In recent reporting periods, employers were instructed to report non-binary employees by footnote. EEOC is seeking approval to remove the option for employers to voluntarily report on employees who have self-identified as “non-binary” in order to comply with Executive Order 14168. This change would mean that the booklet’s instructions on “Reporting by Sex” would be restated to: “The EEO-1 Component 1 data collection provides only binary options (i.e., male or female) for reporting employee counts by sex, job category, and race or ethnicity.” What Employers Should Do Now? To ensure compliance with the new EEO-1 reporting requirements, employers should review and update their data collection processes. This includes auditing current systems to ensure they can accommodate the reporting of sex as needed. Employers should also stay informed about any updates or clarifications issued by the EEOC regarding the implementation of these changes. Polsinelli will continue to monitor developments with the EEO-1 report. If you have questions about EEO-1 reporting, contact Erin Schilling, Shivani Bailey or your Polsinelli attorney.

Key Takeaways Disparate impact liability holds employers accountable for policies that appear neutral, but disproportionately harm a particular race, sex or a protected group, even without discriminatory intent. This EO significantly reduces federal agency enforcement of disparate impact claims, but importantly, does not impact the risk of a class or individual claim under federal or state laws. Businesses should continue to review hiring and promotion policies for unintentional bias, ensure compliance with federal law and any applicable state laws, and await updated federal guidance from the EEOC. On April 23, 2025, President Trump issued an Executive Order entitled “Restoring Equality of Opportunity and Meritocracy” (“EO”) mandating the elimination of disparate impact liability within Title VI and VII of the Civil Rights Act of 1964. The EO further emphasizes the importance and focus of this administration on the concept of equal employment opportunity. Disparate impact liability is a means by which employers can be held liable for discrimination when their facially neutral policies or practices result in a disproportionate adverse impact on a particular race, sex or a protected class. This theory of liability was recognized by the Supreme Court in 1971 in the case of Griggs v. Duke Power Co., and was later codified by Congress in the Civil Rights Act of 1991. This EO seeks to eliminate the use of this theory of liability to the “maximum degree possible.” To effectuate this goal, the order takes several key steps. First, it revokes several former presidential actions that approved of disparate impact liability. Second, it directs all agencies to deprioritize enforcement of statutes and regulations to the extent that they include disparate impact liability. This order directs the Attorney General to initiate appropriate action to repeal or amend the implementing regulations for Title VI of the Civil Rights Act of 1964 for all agencies to the extent they contemplate disparate-impact liability. In addition, within 30 days of the date of the EO, the Attorney General is to report to the President, in coordination with the chairs of all other agencies, all existing regulations, guidance, rules or orders that impose disparate impact liability and detail steps for their amendment or repeal. This EO also directs the Attorney General and EEOC Chair to assess all pending investigations, civil suits or positions taken in ongoing matters that rely on a theory of disparate impact liability and to take appropriate action consistent with this EO. Further, the Attorney General is to determine whether Federal Authority preempts State laws that impose disparate impact liability. Finally, the EO directs the Attorney General and the EEOC Chair to issue guidance or technical assistance to employers regarding appropriate methods to promote equal access to employment regardless of whether an applicant has a college education, where appropriate. Practically, this EO signals a continued shift in enforcement at the EEOC. It seems unlikely the EEOC will bring any new litigation relying on disparate impact. However, a private right of action for disparate impact still exists under the precedent of Griggs and similar cases, allowing employees to bring claims of discrimination relying on a disparate impact theory. Moreover, state laws may also provide for disparate impact liability. Employers should monitor further guidance that is expected to be issued following this EO. If you have any questions about how these changes may impact you or your organization, please feel free to reach out to Erin Schilling, Gabriel Gomez, Polsinelli’s Executive Action Working Group or your regular Polsinelli attorney.

On April 29, 2025, the Missouri Supreme Court ruled to uphold Proposition A, the voter-approved initiative that increases the state’s minimum wage and requires employers to provide earned paid sick leave. The law will take effect as planned on Thursday, May 1. What is Proposition A? Proposition A raises minimum wage and introduces mandatory earned paid sick leave for most workers. Some of the key provisions of Proposition A include: Raising the minimum wage to $13.75 per hour in 2025 and $15 by 2026 and providing for annual inflation-based increases thereafter. Requiring employers to provide paid sick leave, with workers earning one hour of leave for every 30 hours worked. The Legal Challenge Business associations and other opponents of the measure challenged the law in Case No. SC100876, Raymond McCarty, et al. v. Missouri Secretary of State, et al. Plaintiffs argued that the summary statement and fiscal note summary were so misleading that they cast doubt on the fairness of the election and validity of its results. Further, Plaintiffs argued that Proposition A was invalid because it violated the “single subject” and “clear title” requirements of Art. III, Section 50 of the Missouri Constitution. Majority Opinion The Missouri Supreme Court’s majority held the results of the election adopting Proposition A are valid and dismissed, without prejudice, the claim contending Proposition A violated the single subject and clear title requirements for lack of jurisdiction. Key points from the majority opinion: Ballot Summary: The Court determined that the summary language was not materially inaccurate or seriously misleading to demonstrate an irregularity. Instead, the Court stated that Plaintiffs made conclusory allegations that the summary statement language misled voters but did not offer evidence to support those conclusions. Thus, a new election was not warranted. Single-Subject Rule: The judges declined to rule on whether Proposition A violated the single subject rule—the Court dismissed the claim without prejudice for lack of jurisdiction, stating that the claim had not been properly raised in a lower court before coming to the Supreme Court. Separate Opinion Judge Ransom issued a separate opinion from the majority, stating that she disagreed that the Supreme Court possesses original jurisdiction over election contests. However, Judge Ransom agreed with the majority’s decision if, for argument’s sake, the Court had jurisdiction to hear the challenges. What Happens Next? With the ruling in place: Proposition A will take effect on May 1, 2025. Employers must comply with new minimum wage rates and paid sick leave requirements, including taking immediate steps to implement paid sick leave by May 1. Lawmakers or business groups could still seek legislative revisions or bring new legal challenges. For questions about what your business needs to do to comply with the new law, reach out to your Polsinelli attorneys.

The earned paid sick time provisions of Proposition A are set to take effect on May 1, 2025. Missouri Proposition A requires employers to provide employees working in Missouri at least 1 hour of sick leave for every 30 hours worked and allows carryover of up to 80 of such hours per year. The law applies to almost all Missouri employees, including full-time, part-time and temporary with limited exceptions. For more details on the requirements and background of this paid sick leave law, see our prior blog posts on Missouri Proposition A requirements here and litigation challenge here. While ongoing litigation and legislative efforts seek to delay or modify certain aspects of the law, these initiatives are unlikely to affect the start date or the notice period required by the statute. Therefore, it is essential for employers to begin preparing for the implementation of the law to ensure compliance with the statutory requirements, including the mandatory notice and poster provisions. Notice and Poster Requirements Written Notice to Employees Employers are required to provide written notice of the earned paid sick time policy to all employees by April 15, 2025. The notice must be provided on a single sheet of paper, using a font size no smaller than 14-point. This notice should be distributed along with the employer’s updated written policy. The Missouri Department of Labor & Industrial Relations has provided a standardized notice for employers. Poster Display Requirement In addition to the written notice, Proposition A mandates that employers display a poster detailing the earned paid sick time policy in a “conspicuous and accessible place” at each workplace. This poster must be displayed starting April 15, 2025. The Missouri Department of Labor & Industrial Relations has also provided a poster for this purpose. Litigation Update On March 12, 2025, the Missouri Supreme Court heard oral arguments in a case brought by various business groups and associations challenging the constitutionality of Proposition A. The plaintiffs argue that the Proposition is unconstitutional due to its inclusion of both minimum wage and paid sick time issues on the same ballot. While the Supreme Court has not yet issued a ruling, it typically takes between 100 and 200 days for the Court to render an opinion. Although the outcome of the case may ultimately affect certain provisions of the law, employers should continue preparing for the implementation of Proposition A as currently written, effective May 1, 2025. Legislative Update On March 13, 2025, House Bill 567 passed in the Missouri House of Representatives. This bill seeks to repeal the paid sick leave provisions of Proposition A, delay the scheduled minimum wage increase, and eliminate the annual adjustments to the minimum wage based on the price index. The bill cleared a public hearing in the Senate on March 26, and an executive session will be held on April 7. If the bill passes the Senate and is signed into law by the Governor, it will not take effect until August 28, 2025. As a result, Proposition A will remain in effect beginning May 1, 2025, and employers should prepare for the law to be implemented as currently written. Resources and Support The Missouri Department of Labor & Industrial Relations has developed an overview and frequently asked questions (FAQ) section on its website to assist employers in understanding the requirements of Proposition A and the earned paid sick time benefits. Missouri employers need to review and likely need to update their existing policies regarding sick time and/or paid time off to comply with Missouri paid sick leave requirements. For questions and assistance regarding such changes, please contact your Polsinelli attorney. We are available to help ensure your organization remains compliant with the law.

On March 20, 2025, the Equal Employment Opportunity Commission (EEOC) released two key guidance documents focusing on DEI-related discrimination in the workplace. These documents are written as guidance for employees and outline ways the EEOC believes initiatives could lead to unlawful discrimination, including disparate treatment, reverse discrimination, segregation and harassment. The guidance stresses the importance of regular policy reviews, comprehensive training and legal consultation to navigate DEI-related challenges effectively and remain compliant with Title VII protections. Read the full update. 

On January 21, 2025, President Trump issued an Executive Order revoking Executive Order 11246, which imposes anti-discrimination and affirmative action requirements on federal government contractors and subcontractors. This action, part of the new administration’s broader assault on DEI efforts in the federal government and private sector, may eliminate a significant compliance obligation for federal contractors. However, much remains uncertain about the going forward status of affirmative action requirements in federal contracting.  The new Executive Order requires the Office of Federal Contract Compliance Programs (OFCCP), which administers Executive Order 11246 among other laws, to immediately cease promoting diversity, stop federal contractors and subcontractors from taking affirmative action and end workforce balancing by federal contractors based on race, color sex, sexual preference, religion or national origin. The Executive Order also states that federal contractors shall not consider race, color, sexual preference, religion or national origin “in ways that violate the Nation’s civil rights laws” when making employment, procurement and contracting decisions. The Executive Order states that federal contractors may continue to comply with the regulatory scheme required by Executive Order 11246 until April 20, 2025. OFCCP did not immediately issue guidance on how the new Executive Order impacts contractors’ obligations. Given that OFCCP’s regulations provide that affirmative action goals are not quotas or set-asides, do not supersede merit selection and do not justify making employment decisions in a discriminatory manner, it is unclear how they conflict or would interact with the Executive Order’s prohibition of illegal discrimination and workplace balancing.  With that said, the now-revoked Executive Order 11246 is the source of those OFCCP regulations and contractor race and gender affirmative action obligations. It does not appear that the Executive Order would affect veteran affirmative action plan obligations under the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA) or disability affirmative action plan obligations under Section 503 of the Rehabilitation Act, given the statutory basis for those requirements. In addition to eliminating Executive Order 11246, the new Executive Order requires that every federal contract or grant award must now include a term certifying that the contractor or award recipient will not operate any programs promoting DEI that violate federal anti-discrimination laws, and a term requiring compliance “in all respects with all applicable Federal anti-discrimination laws.” The Executive Order states that this term is material to the government’s payment decision. This raises the specter of potential whistleblower actions under the False Claims Act against contractors operating allegedly discriminatory programs. The revocation of Executive Order 11246 underlines the extent to which DEI efforts are in the Trump administration’s crosshairs. On the same day as the new Executive Order, the Office of Personnel Management issued a memorandum immediately suspending with pay all federal employees working in agency DEI offices. As other agencies continue to take actions based upon President Trump’s DEI-related executive orders, companies that do business with the federal government will need to pay close attention. While much remains unclear, the new Executive Order will undoubtedly be a sea of change for federal contractors and subcontractors. Polsinelli is available to assist contractors in navigating the changing landscape surrounding affirmative action and other DEI requirements.

In the 2024 election, Missouri voters approved Proposition A, a measure that raises the minimum wage beginning January 1, 2025, and introduces mandatory earned paid sick leave for most workers effective May 1, 2025. Key Provisions of Proposition A Applicability: Proposition A applies to most private employers and applies to most employees including full and part-time with limited exceptions. Minimum Wage Increase: Proposition A establishes a gradual increase in Missouri’s minimum wage over the next two years. Starting January 1, 2025, employers must pay Missouri employees a minimum wage of $13.75 per hour. The minimum wage increases to $15.00 per hour on January 1, 2026. Beginning January 1, 2027, the minimum wage will either increase or decrease year after year based on the cost of living. Earned Paid Sick Leave: The law mandates that employers provide paid sick leave, allowing employees to take time off for conditions such as personal illness or care of a family member with an illness. Employers can either front-load sick leave, providing employees with their full annual leave at the start of the year or use an accrual system where leave is earned over time. The amount of accrual depends on the number of employees. For example, an employer with fifteen or more employees must provide a minimum accrual of one hour of earned paid sick time for every thirty hours worked. Full-time employees who are exempt from overtime under the Fair Labor Standards Act are assumed to work 40 hours in a work week for accrual calculations—these employees are expected to accrue approximately 70 hours of earned paid sick time per year. Carryover: Employees can carry over up to 80 hours of unused, earned sick leave into the following year. However, an employer does not have to permit an employee to use more than the entitled number of sick time hours available under the statute. For employers with fifteen or more employees, employees are not entitled to use more than 56 hours of earned paid sick time per year, unless the employer selects a higher amount. PTO Policies: In lieu of implementing a second policy, an employer who already has a paid time off policy can modify their existing policy to comply with Proposition A’s requirements. If the paid leave policy meets the accrual requirements and can be used for the same conditions as earned paid sick time, additional earned paid sick time is not required. Payout: Employers are not required to pay out unused sick leave at the end of the year but may choose to do so as part of their policy instead of allowing carryover. Notably, an employer does not have to pay an employee unused earned paid sick time at termination or separation from employment. Impact on Employers Adjustments Required: Employers must comply with the new minimum wage requirements and set up systems to manage paid sick leave. They can opt for front-loading or an accrual method. Employers opting to adjust their paid leave policy to encompass earned paid sick time may do so if their policy complies with Proposition A’s accrual and use requirements. Flexibility: While the wage increases and paid sick leave mandate may increase costs, employers have some flexibility in managing sick leave through carryover limits, payouts, use limits, and discretion to loan sick time in advance. Proposition A introduces significant changes for Missouri minimum wage and paid sick leave. For questions and assistance regarding such changes, please contact your Polsinelli attorney.

On November 15, 2024, the Office of Federal Contractor Compliance Programs (OFCCP) published its Corporate Scheduling Announcement List (CSAL) online, identifying contractors who will be receiving an audit scheduling letter in the coming year. Contractors were selected based on a variety of considerations, including higher employee count. This CSAL includes 2,000 establishments of supply and service contractors with federal contracts. The list identifies the specific review types that contractors will be subject to, including 1,880 standard establishment reviews, 60 corporate management compliance evaluations, 48 functional affirmative action program reviews, and 12 university reviews. A full copy of the lists can be found here. OFCCP does not make any promises regarding how soon each compliance review will be initiated and has stated it depends on the agency’s workload. Contractors on the CSAL can expect to receive a scheduling letter at any point after the CSAL is posted with some receiving notice quickly and others waiting many months. Contractors will have only 30 days to respond to the scheduling letter once received. Accordingly, the advance notice provided by the CSAL can be a valuable opportunity for contractors to prepare for an upcoming audit, collect the data and documents the contractor will be required to submit to OFCCP within a relatively short period after receipt of the scheduling letter, and identify any potential compliance vulnerabilities that may need to be addressed during the audit process. Contractors named in the CSAL should consider consulting with experienced counsel to assist in preparing for the forthcoming audit scheduling letter and to take advantage of this valuable preparation time. Polsinelli regularly represents federal contractors and subcontractors in OFCCP audits, and is available for consultation with contractors identified in the CSAL. 

On October 29, 2024, the Office of Contract Compliance Programs (“OFCCP”) published a notice in the Federal Register about a request for Type 2 Consolidated EEO-1 Reports (the “Consolidated Reports”) for 2021. (The request is also for 2022 reports, but OFCCP does not currently have those reports.) This request has been made by the University of Utah and a non-profit organization named “As You Sow” – and is separate from the 2022 request made by the Center for Investigative Reporting, which sought the same reports for 2016-2020. An appeal of the proposed release of the objected-to data remains pending in the Ninth Circuit. The Consolidated Reports contain demographic data for all employees at headquarters as well as all establishments, categorized by race/ethnicity, sex, and job category. With the publication of the Notice by OFCCP, government contractors now have until December 9, 2024, to object to the release of this sensitive data. If contractors miss that deadline, their data could be automatically released. The OFCCP has provided a list of contractors subject to this request.  As occurred with the prior FOIA request for Consolidated Reports, contractors must submit their objections to the release of the data to OFCCP through the OFCCP’s Submitter Notice Response Portal (or certain other specified means). The portal provides specific questions for contractors to answer, which address whether the Consolidated Reports and their data should be withheld pursuant to FOIA Exemption 4, which specifically addresses the withholding of trade secret or commercial or financial information. The OFCCP has provided FAQs to aid contractors in determining whether they are covered by the request and how to object, as well as providing contact information for reaching out to the OFCCP FOIA Help Desk. If a contractor submits an objection, OFCCP will independently evaluate the objections and make a determination regarding withholding the Consolidated Reports under Exemption 4. Both the objector and the requesting entities will receive notice of a determination to withhold data. Accordingly, if there is data in your Consolidated Reports that you don’t want published or accessible to competitors, act quickly to submit objections prior to the December 9th deadline. Otherwise, you should expect that your report’s data may be provided to an entity who will make it public. For questions or assistance in evaluating whether you should file an objection to the FOIA request, or in preparing an objection, please contact your Polsinelli attorney.

On June 7, 2024, the Office of Federal Contract Compliance Programs (OFCCP) released its first Corporate Scheduling Announcement List (CSAL) for fiscal year 2024. Specifically, this list identifies around 500 federal supply and service contractors and subcontractors that will be audited. The CSAL can be found here and the OFCCP answers to CSAL-related questions can be found here. Of the 500 contractors and subcontractors identified, 440 are establishment-based reviews, 30 are corporate management compliance evaluations (CMCE) focused on the contractor’s headquarters, 24 are functional affirmative action plan (FAAP) reviews, and 6 are university reviews. The release of the CSAL does not indicate that audits are beginning but rather, informs contractors and subcontractors that they have been identified for audit. This allows contractors and subcontractors advance notice and can be very helpful in providing time to prepare for the audit, gather data and documents necessary for the audit, and identify any potential issues that may need to be addressed before or during the audit. Before formally initiating an audit, OFCCP sends contractors and subcontractors a Scheduling Letter. Scheduling Letters are often issued around 45 days after the CSAL is released, and as such, it can be difficult and rushed for contractors and subcontractors to prepare for the audit. Polsinelli regularly represents federal contractors and subcontractors in OFCCP audits and is available for consultation with contractors and subcontractors identified in the CSAL.

Tuesday, June 4, 2024, is the deadline to submit and certify the 2023 EEO-1 Component 1 Report to the Equal Employment Opportunity Commission (EEOC). While the deadline has been extended occasionally in prior years, no such announcement has been made to date. Accordingly, all covered employers should take steps to comply by the deadline. The importance of meeting this annual reporting requirement was further emphasized this week when the EEOC filed suit against 15 employers in various industries across 10 states for failing to submit their EEO-1 Component 1 Reports for past years, including for the years 2021 and 2022. Additional information regarding reporting requirements and whether your company is required to submit and certify can be found here. Polsinelli will continue to monitor developments with EEO-1 reporting and the above-referenced EEOC lawsuits. If you have questions about EEO-1 reporting or need assistance preparing this report, contact your Polsinelli attorney.

The Office of Federal Contract Compliance Programs (OFCCP) announced that the Contractor Portal for federal contractors and subcontractors to certify compliance with their affirmative action plan (AAP) obligations will open on April 1, 2024, with contractors and subcontractors having until July 1, 2024, to submit the required certification. This is the third year of OFCCP’s annual certification requirement. Contractors must again certify that they have developed and maintained annual affirmative action plans for each of their workplace establishments or functional/business units, as applicable.  Beginning last year, contractors and subcontractors were required to enter the start date of their currently maintained AAP. For the current 2024 certification period, contractors are certifying compliance for its most recent AAP start date.  In addition, covered federal contractors must disclose the number of employees which are included in each establishment AAP.  OFCCP continues to stress the need to meet this reporting deadline. The agency has indicated that contractors who fail to certify compliance (due to either failing to complete the certification or stating in the certification they have not complied) “will be more likely to appear on OFCCP’s scheduling list” for annual compliance audits. The certification requirement applies to existing federal contractors. OFCCP encourages new contractors to register as soon as possible after entering a contract and then update certification within 90 days of developing their AAP. Polsinelli assists many federal contractors and subcontractors in completing the Contractor Portal certification requirement and assists many entities doing business (directly or indirectly) with the federal government in determining whether they are subject to AAP obligations. Polsinelli’s OFCCP & Affirmative Action Plans practice is available to provide practical assistance to contractors and subcontractors with the certification process.

On Tuesday, April 30, 2024, the Equal Employment Opportunity Commission (EEOC) will open the 2023 EEO-1 Component 1 Report for employers to report the race, ethnicity and gender of their employees. The EEO-1 reporting period is scheduled to remain open until Tuesday, June 4, 2024. This reporting is mandatory for private sector employees with 100 or more employees and certain federal contractors with 50 or more employees. In addition, employers with less than 100 employees who are related to other entities, such that combined, there are over 100 employees, may also be required to file. The EEOC anticipates posting updates regarding the 2023 EEO-1 Component 1 data collection by Tuesday, March 19, 2024, including the 2023 EEO-1 Component 1 Instruction Booklet and the 2023 EEO-1 Component 1 Data File Upload Specifications. Polsinelli will continue to monitor developments with the EEO-1 report. If you have questions about EEO-1 reporting or need assistance preparing this report, contact your Polsinelli attorney.

Despite objections by thousands of employers and its continuing review of records, the OFCCP has been ordered by a federal court to produce all EEO-1 Type 2 reports of federal prime contractors and first-tier subcontractors from 2016-2020 as requested by the Center for Investigative Reporting (“CIR”) through multiple FOIA submissions. CIR filed litigation to enforce its FOIA request in December 2022 in the Northern District of California. On December 22, 2023, that court issued an order requiring OFCCP to produce the EEO-1 Type 2 reports, determining that the information included in the reports was not the type of “commercial” information protected from release under FOIA. Specifically, the court found that the reports were not exempt from disclosure under Exemption 4 of FOIA as the information in the reports is not “intrinsically valuable business information” and the headcounts in all industries and across broad job categories do not provide “commercial insight…specific to the operations of a federal contractor.” The court also rejected OFCCP’s assertion the data constituted trade secrets protected from disclosure and found no substantial risk of harm through the disclosure of competitive business secrets. While the court initially required OFCCP to produce the EEO-1 Type 2 reports by January 19, 2024, the parties agreed to extend the deadline to February 20, to give OFCCP an opportunity to determine whether to appeal the decision. It is anticipated that an appeal of the decision will delay any required disclosure of the reports. Contact your Polsinelli attorney for further guidance regarding this anticipated disclosure and other government contractor matters.

On October 31, 2023, the Equal Employment Opportunity Commission (EEOC) will open the 2022 EEO-1 Component 1 Report for employers to report the race, ethnicity and gender of their employees (by job category) with a due date on December 5, 2023. Of note, the relevant data should be gathered based on an employer’s workforce from October 1, 2022 to December 31, 2022. This reporting is mandatory for private sector employees with 100 or more employees, employers with less than 100 employees who are related to other entities so there is a combined employee count over 100 employees may be required to report and certain federal contractors with 50 or more employees. The EEOC is in the process of releasing numerous resources to assist employers in reporting, including the Filer Support Message System that will open on October 31, 2023, the Instruction Booklet released on September 6, 2023, and the Data Upload Specifications which is anticipated to be released on September 13, 2023. At this time, there are no known changes to the substance of what employers must report but the actual report may look different and likely will be streamlined; however, that is only for the 2022 EEO-1 Reporting and is subject to change in the following years. Polsinelli will continue to monitor developments with the EEO-1 report. If you have questions about EEO-1 reporting, contact your Polsinelli attorney.

Under Title VII of the Civil Rights Act, private sector employers with 100 or more employees and certain federal contractors with 50 or more employees are required to provide demographic information of their workforces—otherwise known as EEO-1 Component 1 reporting. This includes data such as sex, race, ethnicity, and job categories. The 2022 reporting period has been delayed. It is currently scheduled to open in the fall of 2023—with no date set in stone. The EEOC is in the process of doing a three-year renewal of EEO-1 Component 1 reporting with the Office of Management and Budget (“OMB”) which is required by the Paperwork Reduction Act. While the Biden administration has expressed support for collecting compensation data with the EEO-1 report, EEOC has made clear on the EEO-1 Component 1 page that it is not making changes to the EEO-1 Component 1 data collection categories.  Rather, EEOC is seeking to update how the data is collected from employers and to reduce the burden of this collection on employers, including no longer requiring “multi-establishment filers” to submit separate reports based on the size of establishments. While EEOC has not announced a deadline for 2022 EEO-1 Component 1 reporting, required employers and contractors should continue ensuring they are collecting the necessary demographic data to be ready for the deadline. Once a deadline is determined, it will be posted on the EEO-1 Component 1 page, and employers should note that the actual reporting process may look different (and may be less burdensome) if the OMB approves changes to the data collection methods. If you have questions about required notices, contact your Polsinelli attorney.

The Equal Opportunity Clause in federal contracts requires employers to post a notice for employees regarding nondiscrimination. The Officer of Federal Contractor Compliance Programs (OFCCP) adopted a new updated poster. In order to maintain compliance, all covered federal contractors should update their posters as soon as possible. In recent years, OFCCP designated the EEO is the Law and its Supplement as the required poster.  Earlier this month the Equal Employment Opportunity Commission (the “EEOC”)  released an updated workplace nondiscrimination notice. The new notice is titled “Know Your Rights: Workplace Discrimination is Illegal” and is available on the EEOC website and OFCCP website. Per the Equal Opportunity Clause, the notice must be placed in “conspicuous places, available to employees and applicants”. With many applicants applying digitally and more employees working remotely, federal contractor employers should also consider sharing the notice digitally to share the notice with applicants and remote or hybrid workers. While a deadline has not been set for employers to post the updated notice, employers, especially those with a pending or upcoming OFCCP audit, should post the updated notice soon to ensure that they satisfy the posting requirements. Additionally, employers that use a subscription service for required workplace notices should contact their service provider to ensure that they receive the updated version. If you have questions about required notices, contact your Polsinelli attorney.

Today OFCCP announced that it is extending the deadline to respond to and submit objections pursuant to its August 19, 2022, Notice in the Federal Register regarding a Freedom of Information Act (“FOIA”) request from Will Evans, a Senior Reporter and Producer with the Center for Investigative Reporting (“CIR”). The request seeks federal contractors’ Type 2 Consolidated EEO-1 Report Data. For a discussion of the scope of the request and additional details about the substance and process of objecting, click here. What Has Changed? OFCCP indicated that after publishing the Notice in the Federal Register, it had received numerous requests from contractors and contractor representatives to extend the time period for submitting objections. In addition, during this same time period, some federal contractors have reached out to OFCCP seeking to verify whether they are included in the universe of “Covered Contractors” during the requested timeframe for the reports. To accommodate these concerns, OFCCP has extended the deadline to submit objections by a month – from September 19, 2022, to October 19, 2022. Further, OFCCP will also be taking the additional step of emailing contractors that OFCCP believes are covered by the FOIA request. OFCCP will use the email addresses provided by contractors registered in OFCCP’s Contractor Portal, as well as the email addresses provided as a contact for the EEO-1 report when submitted. This undertaking should provide some clarity to contractors who are unsure if they are within the scope of the FOIA request. Important Reminders OFCCP has created a Portal for submitting objections to the FOIA request, and has provided FAQs to aid in determining if a contractor is covered by the request and how to object to the request. In addition, OFCCP has provided direction for seeking assistance by contacting the OFCCP FOIA Help Desk by phone or email. What Happens Next? If you do not submit an objection to the FOIA request, then OFCCP will release the data to CIR as a part of a rolling production after October 19. If you do submit an objection, OFCCP will independently evaluate the objections and make a determination regarding withholdings under Exemption 4. Both the objector and CIR will receive notice of a determination to withhold data. If there is information in your EEO-1 Reports that you don’t want published or accessible to competitors, act quickly to submit objections to OFCCP prior to the October 19 deadline. Otherwise, you should expect that your report’s data may be provided to a reporter who will make it public. For questions or assistance in evaluating whether you should file an objection to the FOIA request, or in preparing an objection, please contact your Polsinelli attorney.

On August 19, 2022, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) published a Notice in the Federal Register regarding a Freedom of Information Act (“FOIA”) request from Will Evans, a Senior Reporter and Producer with the Center for Investigative Reporting (“CIR”).  The FOIA request seeks the disclosure of certain government contractor compliance reports submitted to the Equal Employment Opportunity Commission. The OFCCP is allowing affected contractors to submit objections to the FOIA request if they fear confidential commercial information may be disclosed and ultimately published. The Scope of the Request The FOIA request was initially made in January 2019 but has been amended multiple times and now seeks all Type 2 Consolidated EEO-1 Report demographic data submitted by federal contractors and first-tier subcontractors from 2016-2020. The request does not include EEO-1 requests from single-establishment (Type 1) contractors, other EEO-1 reports filed by Type 2 (multi-establishment) contractors or Component 2 reports with compensation data. Type 2 Consolidated EEO-1 Reports are consolidated reports of demographic data for all employees at headquarters as well as all establishments, categorized by race/ethnicity, sex, and job category. OFCCP estimates that nearly 15,000 companies filed reports subject to the FOIA request. A company can use the EEO-1 Online Filing System’s historic data to determine if they filed EEO-1 Reports between 2016 and 2020. What If I Don’t Want My EEO-1 Reports Made Public? FOIA grants the public the right to request access to records from any federal agency. However, there are certain exemptions that allow agencies to redact – or entirely withhold – certain requested information. In its Notice, the OFCCP states it believes that the information requested may be protected from disclosure under FOIA Exemption 4 – which protects disclosure of confidential commercial information. Accordingly, OFCCP is now requesting that any federal contractor who filed a Type 2 Consolidated EEO-1 Report as a federal contractor between 2016 and 2020 and who wishes to object to the disclosure of the information submit an objection to the OFCCP by September 19, 2022. How Do I Submit an Objection? Because of the large number of affected companies, OFCCP has established a portal for contractors to submit written objections. While the OFCCP encourages the use of the portal, objections may also be submitted via email to OFCCPSubmitterResponses@dol.gov, or by mailing to “ATTN: FOIA Officer (FRN), Office of Federal Contract Compliance Programs, Division of Management and Administrative Programs, 200 Constitution Avenue NW, Room C3325, Washington, DC 20210. All objections, however submitted, must be received by OFCCP by September 19, 2022. What Must I Include in the Objection? The OFCCP specifically requires the objection to include the contractor’s name, address, and contact information, and should, at a minimum address the following questions to determine if information should be withheld pursuant to FOIA Exemption 4: What specific information in the Report does the contractor consider to be a trade secret or commercial or financial information? What facts support the contractor’s belief that this information is commercial or financial in nature? Does the contractor customarily keep the information private or closely-held, what steps are taken to protected the confidentiality of the information, and to whom has it been disclosed? Does the contractor contend the government provided an express or implied assurance of confidentiality, or were there express or implied indication that the government would publicly disclose the information? How would disclosure of this information harm an interest of the contractor? Will it, for example, cause foreseeable harm to economic or business interests? How Do I Know if My Information Is Covered Under FOIA Exemption 4? The OFCCP Notice points contractors to two recent court decisions that should be considered in determining whether information may be withheld pursuant to Exemption 4. In Food Marketing Institute v. Argus Leader Media, 139 S. Ct. 2356 (2019), the Supreme Court determine the term “confidential” in FOIA means what it did at the time of its enactment: “private” or “secret.” Following this, the Department of Justice issued a step-by-step guide for determining whether information is confidential under Exemption 4. Further, in a case involving CIR, a district court determined that Type 2 Consolidated EEO-1 Reports were not protected from disclosure under Exemption 4 – finding that conclusory and verbatim rationale about the data contained in the reports did not support a finding that they were commercial. Center for Investigative Reporting v. U.S. Dep’t of Labor, 424 F. Supp. 3d 771 (N.D. Cal. 2019).  The OFCCP notes this is the only case discussing the commerciality of the EEO-1 Report data. What Happens Next? If you do not submit an objection to the FOIA request, then OFCCP will release the data to CIR as a part of a rolling production after September 19. If you do submit an objection, OFCCP will independently evaluate the objections and make a determination regarding withholding the information under Exemption 4. Both the objector and CIR will receive notice of a determination to withhold data. The Bottom Line If there is information contained in your EEO-1 Reports that you don’t want published or accessible to competitors, act fast to submit objections to OFCCP. Otherwise, you should expect that your report’s data may be provided to a reporter who will make it public. For questions or assistance in evaluating whether you should file an objection to the FOIA request or how to present your objection, please contact your Polsinelli attorney.

The Equal Employment Opportunity Commission (EEOC) announced that it will open the 2021 EEO-1 Component 1 Report on April 12, 2022 with a due date of May 17, 2022.  The EEOC’s announcement indicates that both dates are “tentative” and EEO-1 opening and closing dates have been subject to modification by EEOC in recent years. The EEO-1 requires covered employers to report by job category the race, ethnicity and gender of its employees.  Covered employers include those with 100 or more employees and federal contractors with 50 or more employees and a federal contract of $50,000 or more.  Note that employers with less than 100 employees who are owned or affiliated with another entity such that the combined employee count is over 100 employees may also be required to file this report. Covered employers are encouraged to confirm that all employees have had the opportunity to voluntarily self-identify their gender, ethnicity and race.  If employees who have not responded to this voluntary invitation, employers may re-extend the invitation and/or rely on employment documents such as an I-9 or visual observation.  If an employer needs to rely on visual observation, it will be easier to gather this information now rather than waiting until April 2022. EEOC has already announced one change for the 2021 report.  EEOC will discontinue the EEO-1 Component 1 Type 6 Establishment List Report for establishments with fewer than 50 employees.  These establishments must now use the Type 8 Establishment Report for the 2021 filing cycle. Polsinelli will continue to monitor developments with the EEO-1 report.

In an attempt to contain the continuing COVID-19 pandemic, President Biden issued two Executive Orders on September 9, 2021 that mandate COVID-19 vaccines for federal government employees and employees of federal government contractors. Although key details of these vaccine mandates have yet to be defined, the new measures appear to build on the administration’s recent mandate for vaccination or testing of contractor employees who work on-site at federal locations.  As a result of these new mandates, federal government contractors will soon be presented with complex and risk-laden decisions as employees seek exemptions, to the extent available, from the vaccine mandate. The Basics of the Executive Orders The first executive order is applicable to federal government employees, and requires the Safer Federal Workforce Task Force (Task Force) to issue guidance requiring a vaccine mandate for federal agency employees.  Federal agencies are then required to implement the Task Force’s guidance “with exceptions only as required by applicable law.”  The second executive order is applicable to federal government contractors, and provides that new government contracts and contract-like instruments must include a clause requiring the contractor and “any subcontractors (at any tier)” to comply with “all guidance” issued by the Task Force.  Pursuant to the terms of the contractor Executive Order, the clause’s requirements are applicable to “any workplace locations (as specified by the Task Force Guidance) in which an individual is working on or in connection with a Federal Government contract or contract-like instrument.”  The Executive Order applicable to federal contractors provides that the Task Force will issue its guidance by September 24, 2021, and outline “definitions of relevant terms,” “explanations of protocols required of contractors and subcontractors,” and “any exceptions” to the vaccination mandate. What Types of Federal Contracts Trigger the Vaccine Mandate? The vaccine mandate is applicable to any contract or contract-like instrument that is entered into, extended, renewed, or has an option exercised on or after October 15, 2021. However, the Executive Order is effective immediately and agencies are “strongly encouraged, to the extent permitted by law” to extend the vaccine mandate to existing contracts not otherwise subject to the Executive Order.  The Executive Order adopts the definition of “contract or contract-like instrument” from the Department of Labor’s minimum wage regulations, and thus presumably excludes procurement contracts excluded from the Davis-Bacon Act and service contracts excluded from the Service Contract Act.  The Executive Order explicitly excludes federal grants, contracts with Indian Tribes, employees who perform work outside of the United States, contracts equal or less than the simplified acquisition threshold (generally $250,000), and subcontracts solely for the provision of products. Which Employees are Covered By the Mandate? The new contract clause will “apply to any workplace locations (as specified by the Task Force Guidance) in which an individual is working on or in connection with a Federal Government contract or contract-like instrument.”  The “on or in connection with” standard is borrowed from the federal contractor minimum wage requirement.  Employees perform services “on” a contract when they perform the work required by the contract, and perform “in connection with” a federal contract when they perform services that are not required by the contract, but are necessary to the performance of the contract’s services, such as custodial, security, or maintenance services at facilities that perform both commercial and government work.  The executive order applies to “any workplace locations . . . in which an individual is working on or in connection” with a contract.  On its face, this would apply the vaccine mandate to full-time remote workers who do not interact in-person with any other co-workers. The Executive Order is ambiguous about several important issues, which will need to be fleshed out by the Task Force’s guidance.  First, in the context of the federal contractor minimum wage requirement, employees who work only “in connection with” a contact are not covered unless more than 20% of their work time is spent performing contract-related services.  Will the same 20% threshold apply to the vaccine mandate?  Second, the Executive Order is phrased to apply to “any workplace locations” where contract work is performed, rather than to employees performing the work.  Arguably, the mandate may cover workers performing only commercial work if there is also government contract work performed at the employee’s “workplace location,” which is itself a potentially ambiguous term pending further guidance from the Task Force. What Exemptions are Applicable? The Executive Order provides that the Task Force should permit only exceptions “required by applicable law.”  Presumably, this would include disability, religious, and pregnancy accommodations that are required by federal statutes. To date, many employers implementing vaccine mandates have struggled with these accommodation requirements, which present complex and nuanced legal issues.  To the extent the Task Force’s guidance regarding exemptions is different than generally-applicable federal law, it will only add to the complexity. Moreover, state law may impose different or additional requirements, including laws in some states protecting workers against mandatory vaccine mandates, which may conflict with the mandate required by the Executive Order.  To the extent there is ambiguity as to which employees are actually covered by the Executive Order, the potentially conflicting obligations under the Executive Order and state laws may pose challenging dilemmas for employers. COVID-19 vaccine mandates present complex legal issues for employers, especially when employees claim a right to religious, disability, pregnancy, or other accommodations. Federal contractors should begin working with counsel now to prepare for the new mandate required by the executive orders, including implementing procedures to communicate with employees regarding the mandate, ascertain employees’ vaccination statuses, and process and address requests for accommodations.

In an attempt to contain the continuing COVID-19 pandemic, President Biden issued two Executive Orders on September 9, 2021 that mandate COVID-19 vaccines for federal government employees and employees of federal government contractors. Although key details of these vaccine mandates have yet to be defined, the new measures appear to build on the administration’s recent mandate for vaccination or testing of contractor employees who work on-site at federal locations.  As a result of these new mandates, federal government contractors will soon be presented with complex and risk-laden decisions as employees seek exemptions, to the extent available, from the vaccine mandate. The Basics of the Executive Orders The first executive order is applicable to federal government employees, and requires the Safer Federal Workforce Task Force (Task Force) to issue guidance requiring a vaccine mandate for federal agency employees.  Federal agencies are then required to implement the Task Force’s guidance “with exceptions only as required by applicable law.”  The second executive order is applicable to federal government contractors, and provides that new government contracts and contract-like instruments must include a clause requiring the contractor and “any subcontractors (at any tier)” to comply with “all guidance” issued by the Task Force.  Pursuant to the terms of the contractor Executive Order, the clause’s requirements are applicable to “any workplace locations (as specified by the Task Force Guidance) in which an individual is working on or in connection with a Federal Government contract or contract-like instrument.”  The Executive Order applicable to federal contractors provides that the Task Force will issue its guidance by September 24, 2021, and outline “definitions of relevant terms,” “explanations of protocols required of contractors and subcontractors,” and “any exceptions” to the vaccination mandate. What Types of Federal Contracts Trigger the Vaccine Mandate? The vaccine mandate is applicable to any contract or contract-like instrument that is entered into, extended, renewed, or has an option exercised on or after October 15, 2021. However, the Executive Order is effective immediately and agencies are “strongly encouraged, to the extent permitted by law” to extend the vaccine mandate to existing contracts not otherwise subject to the Executive Order.  The Executive Order adopts the definition of “contract or contract-like instrument” from the Department of Labor’s minimum wage regulations, and thus presumably excludes procurement contracts excluded from the Davis-Bacon Act and service contracts excluded from the Service Contract Act.  The Executive Order explicitly excludes federal grants, contracts with Indian Tribes, employees who perform work outside of the United States, contracts equal or less than the simplified acquisition threshold (generally $250,000), and subcontracts solely for the provision of products. Which Employees are Covered By the Mandate? The new contract clause will “apply to any workplace locations (as specified by the Task Force Guidance) in which an individual is working on or in connection with a Federal Government contract or contract-like instrument.”  The “on or in connection with” standard is borrowed from the federal contractor minimum wage requirement.  Employees perform services “on” a contract when they perform the work required by the contract, and perform “in connection with” a federal contract when they perform services that are not required by the contract, but are necessary to the performance of the contract’s services, such as custodial, security, or maintenance services at facilities that perform both commercial and government work.  The executive order applies to “any workplace locations . . . in which an individual is working on or in connection” with a contract.  On its face, this would apply the vaccine mandate to full-time remote workers who do not interact in-person with any other co-workers. The Executive Order is ambiguous about several important issues, which will need to be fleshed out by the Task Force’s guidance.  First, in the context of the federal contractor minimum wage requirement, employees who work only “in connection with” a contact are not covered unless more than 20% of their work time is spent performing contract-related services.  Will the same 20% threshold apply to the vaccine mandate?  Second, the Executive Order is phrased to apply to “any workplace locations” where contract work is performed, rather than to employees performing the work.  Arguably, the mandate may cover workers performing only commercial work if there is also government contract work performed at the employee’s “workplace location,” which is itself a potentially ambiguous term pending further guidance from the Task Force. What Exemptions are Applicable? The Executive Order provides that the Task Force should permit only exceptions “required by applicable law.”  Presumably, this would include disability, religious, and pregnancy accommodations that are required by federal statutes. To date, many employers implementing vaccine mandates have struggled with these accommodation requirements, which present complex and nuanced legal issues.  To the extent the Task Force’s guidance regarding exemptions is different than generally-applicable federal law, it will only add to the complexity. Moreover, state law may impose different or additional requirements, including laws in some states protecting workers against mandatory vaccine mandates, which may conflict with the mandate required by the Executive Order.  To the extent there is ambiguity as to which employees are actually covered by the Executive Order, the potentially conflicting obligations under the Executive Order and state laws may pose challenging dilemmas for employers. COVID-19 vaccine mandates present complex legal issues for employers, especially when employees claim a right to religious, disability, pregnancy, or other accommodations. Federal contractors should begin working with counsel now to prepare for the new mandate required by the executive orders, including implementing procedures to communicate with employees regarding the mandate, ascertain employees’ vaccination statuses, and process and address requests for accommodations.

On July 29, 2021, the Biden Administration announced a COVID-19 vaccination mandate for certain employees of federal government contractors. The announcement, released in a Fact Sheet, imposes new safety protocols on the federal contractor workforce, but does not flesh out key details, including the specific responsibilities of federal contractors to obtain and ensure compliance. The Fact Sheet states that every “onsite” employee of a federal contractor “will be asked to attest to their COVID-19 vaccination status.” If an employee does not attest to being fully vaccinated, then that employee will be required to wear a mask on the job “no matter their geographic location,” physically distance from other employees and visitors, and comply with weekly or twice weekly screening testing requirements. Unvaccinated employees would also be subject to restrictions on official travel. The Fact Sheet also states that the administration is “directing” that “similar standards” be applied “to all federal contractors.” The Fact Sheet leaves many key questions unanswered, including: Who are the “onsite” contractor employees subject to the new mandate? Presumably the mandate applies to contractor employees who work on federal premises, but the Fact Sheet does not explicitly define this category. What obligations do federal contractors have to determine the vaccination status of their employees or conduct the required testing? What specific physical distancing protocols will unvaccinated employees be required to follow and who is responsible for ensuring compliance? Which agency will be issuing further requirements for “all federal contractors,” and under what statutory authority? Federal contractors, especially those whose employees work on federal premises, should begin immediately preparing to ensure their personnel comply with the new requirements. Contractors may wish to begin taking action to determine the vaccination status of their workforces and encourage employees to obtain a COVID-19 vaccination. Because vaccination issues are rapidly developing and involve complex determinations under the Americans with Disabilities Act, Genetic Information Non-Discrimination Act, and other federal and state laws, contractors should consult with counsel about these requirements. Polsinelli will continue to update the contractor community as additional details are announced.

On July 1, 2021, OFCCP issued its Corporate Scheduling Announcement List (CSAL) scheduling 750 federal contractor and subcontractor establishments for compliance evaluations in fiscal year 2021.  The CSAL identifies contractors and subcontractors that will receive a Scheduling Letter formally initiating an OFCCP audit.  Scheduling Letters are typically issued about 45 days after the CSAL’s publication. The FY2021 CSAL is limited to supply and service contractors, and does not include construction contractors, whose audits will presumably be scheduled pursuant to a separate announcement.  With OFCCP’s elimination of focused reviews and compliance checks earlier this year, significantly fewer contractors will be subject to OFCCP audits in fiscal year 2021 than in recent years.  Overall, the FY2021 CSAL schedules 668 contractor establishment for establishment-based reviews, 57 for functional affirmative action plan (FAAP) reviews, 19 for corporate management compliance evaluations (CMCE) focused on the contractor’s headquarters, and six (6) for university reviews.  In prior years, OFCCP has identified over 2,000 contractors for audits. The CSAL’s publication provides contractors with a valuable opportunity to prepare for the upcoming audit.  OFCCP’s Scheduling Letter requests over 22 categories of data and documents, including full employee-level compensation data, with a relatively short timeframe for response.  Contractors named in the CSAL can begin working immediately, in advance of receipt of the Scheduling Letter, to collect and analyze the requested data and documents in order to identify and, if possible, resolve any potential compliance vulnerabilities before they become more significant issues in the audit process. By identifying potential compliance vulnerabilities now prior to the issuance of a Scheduling Letter, contractors can ensure they are not caught flat-footed by OFCCP allegations arising from the contractor’s initial submission of documents and data.  Although contractors should take this opportunity to ensure that all aspects of their OFCCP compliance are in order, we anticipate that pay equity and gender pay gaps as well as potential race or gender based disparities in reductions in force undertaken during the COVID-19 pandemic will be areas of focus for OFCCP.

On March 2, 2021, the Office of Federal Contract Compliance Programs (OFCCP) amended its Corporate Scheduling Announcement List (CSAL) for supply and service contractors for fiscal year 2020 to remove all of the contractor establishments previously selected for Section 503, accommodation, and promotions focused reviews and compliance checks. This leaves only the 500 compliance evaluations listed in the previous CSAL scheduled for audit at this time. OFCCP also published an amendment to its scheduling methodology. Although this amendment reduces the number of contractor establishments selected for OFCCP audits in fiscal year 2020 from 2,250 to 500, we anticipate that the amendment may turn out to be the first step in an increase in OFCCP audit activity this fiscal year. It appears OFCCP may be refocusing its resources towards the more extensive compliance evaluations and away from the more limited focused reviews and compliance checks, and may issue another CSAL scheduling additional compliance evaluations at some point later in the year. According to FAQ guidance released by OFCCP in connection with the amended CSAL, the changes will not affect pending focused reviews from CSALs issued prior to fiscal year 2020.  In addition, as confirmed by OFCCP’s FAQs, the amendment to the supply and service CSAL will not affect construction contractors who were scheduled for compliance checks or other reviews on the fiscal year 2020 construction CSAL. The amendment to the supply and service CSAL appears to forecast a reversal of former OFCCP Director Craig Leen’s initiative to refocus OFCCP’s enforcement activity on disability and veteran-related compliance issues, as the focused review program had been an important part of Director Leen’s initiatives.  It appears that OFCCP will now instead conduct more compliance evaluations that review the full range of the contractor’s personnel activity and practices and also expose contractors to greater monetary costs and potential liability.

The Equal Employment Opportunity Commission (EEOC) announced this week that it will open the EEO-1 Component 1 Report in April 2021.  The EEO-1 requires covered employers to report by job category the race, ethnicity and gender of its employees.  Because the EEOC postponed the filing deadline for the EEO-1 in 2020, covered employers will be required to file both the 2019 and 2020 EEO-1 Component 1 Reports beginning in April 2021. Covered employers include those with 100 or more employees and federal contractors with 50 or more employees and a federal contract of $50,000 or more.  Note that employers with less than 100 employees who are owned or affiliated with another entity such that the combined employee count is over 100 employees may also be required to file this report. Covered employers are encouraged to confirm that all employees have had the opportunity to voluntarily self-identify their gender, ethnicity and race.  If an employer identifies employees who have not responded to this voluntary invitation, employers may re-extend the invitation and/or rely on employment documents such as an I-9 or visual observation.  If an employer needs to rely on visual observation, it will be easier to gather this information now rather than waiting until April 2021. Polsinelli will continue to monitor developments with the EEO-1 report.

The Equal Employment Opportunity Commission (EEOC) announced this week that it will open the EEO-1 Component 1 Report in April 2021.  The EEO-1 requires covered employers to report by job category the race, ethnicity and gender of its employees.  Because the EEOC postponed the filing deadline for the EEO-1 in 2020, covered employers will be required to file both the 2019 and 2020 EEO-1 Component 1 Reports beginning in April 2021. Covered employers include those with 100 or more employees and federal contractors with 50 or more employees and a federal contract of $50,000 or more.  Note that employers with less than 100 employees who are owned or affiliated with another entity such that the combined employee count is over 100 employees may also be required to file this report. Covered employers are encouraged to confirm that all employees have had the opportunity to voluntarily self-identify their gender, ethnicity and race.  If an employer identifies employees who have not responded to this voluntary invitation, employers may re-extend the invitation and/or rely on employment documents such as an I-9 or visual observation.  If an employer needs to rely on visual observation, it will be easier to gather this information now rather than waiting until April 2021. Polsinelli will continue to monitor developments with the EEO-1 report.

On October 21, 2020, the Office of Federal Contract Compliance Programs (OFCCP) continued to address the highly-controversial diversity and inclusion (D&I) training restrictions in Executive Order 13950.  Specifically, OFCCP issued a Request for Information (RFI) regarding contractor D&I training efforts, as required by the Executive Order, and also held a stakeholder call in which Director Craig Leen addressed several issues surrounding OFCCP’s response to the Executive Order. In the RFI, OFCCP provided some hints as to its enforcement and compliance assistance efforts for the Executive Order’s D&I training restrictions.  Echoing its prior guidance, OFCCP clarified that “training is not prohibited if it is designed to inform workers, or foster discussion, about pre-conceptions, opinions, or stereotypes that people – regardless of their race or sex – may have regarding people who are different, which could influence a worker’s conduct or speech and be perceived by others as offensive.”  As with prior agency guidance, this statement makes clear that while discussions of implicit bias are not absolutely prohibited, those discussions cannot single out specific racial or sex groups as being more likely to harbor biases than others, and must focus on the workforce as a whole. The RFI also invited federal contractors who are unsure about the compliance status of their D&I training materials to seek compliance assistance from OFCCP.  According to the RFI, if a contractor voluntarily submits materials to OFCCP for review, OFCCP will “exercise its enforcement discretion and not take enforcement action” if the contractor “promptly comes into compliance with the Executive Order as directed by OFCCP.”  However, OFCCP reserves the right to pursue enforcement action if it determines that the contractor refused to correct any identified issues.  The RFI also hints that OFCCP may begin requesting D&I training materials in its neutrally-scheduled compliance evaluations, though this request may require OFCCP to obtain approval to modify its OMB-approved Scheduling Letter.  As of October 21, 2020, OFCCP has not requested OMB approval to update its Scheduling Letter in light of the Executive Order. If a contractor wishes to respond to the RFI, the deadline is December 1, 2020. The RFI makes clear that responses are entirely voluntary and contractors may choose not to respond.  However, if someone other than a contractor representative authorized to submit the materials on behalf of the contractor provides information to OFCCP, for example an employee who attended a training session, OFCCP will not exercise its enforcement discretion and could pursue an enforcement action.  Accordingly, there is some risk that a contractor may be subjected to an enforcement action as a result of this RFI even if it does not choose to participate. Director Leen stated similar themes in the October 21, 2020 stakeholder call. Director Leen emphasized that there is overlap between Executive Order 13950’s restrictions on D&I trainings and the pre-existing non-discrimination obligations in Executive Order 11246.  Director Leen characterized Executive Order 13950 as clarifying Executive Order 11246’s prohibition of race or sex stereotyping in the specific area of training programs, and noted that OFCCP would act on any employee complaints it received under the new Executive Order.  This means that all federal contractors must comply with Executive Order 13950, even if they do not have a contract containing the Executive Order’s required clause.  Director Leen closed his remarks by expressing that every employee should feel “completely welcome and included” in contractor diversity efforts, and that “merit and merit alone” should govern contractors’ personnel actions. Although the RFI and stakeholder call provided some insight into OFCCP’s views and enforcement strategy on Executive Order 13950, they did not provide the specific guidance that contractors have sought.  Polsinelli has worked with several government contractor clients to assess their obligations and the compliance status of their D&I efforts under Executive Order 13950, and will continue to update the contractor community on developments regarding the Executive Order.

On September 11, 2020, the Office of Federal Contractor Compliance Programs (OFCCP) released its Corporate Scheduling Announcement List (CSAL) online for public access.  The CSAL identifies contractors who will be receiving an audit scheduling letter. This CSAL includes 200 construction contractors and 2,200 supply and service contractors.  The supply and service list includes multiples different types of reviews.  A full copy of the lists can be found here. Historically, contractors receiving a CSAL received a scheduling letter formally initiating the audit after about 45 days.  The advance notice provided by the CSAL can be a valuable opportunity for contractors to prepare for an upcoming audit, collect the data and documents the contractor will be required to submit to OFCCP within a relatively short period after receipt of the scheduling letter, and identify any potential compliance vulnerabilities that may need to be addressed during the audit process.  As we raised in an earlier blog post here, OFCCP plans to review and evaluate any reductions in force during the time period under audit so contractors should in particular be prepared to defend selection decisions in any layoffs. Contractors named in the CSAL should consider consulting with experienced counsel to assist in preparing for the forthcoming audit scheduling letter.

Craig Leen, Director of the Office of Federal Contract Compliance Programs (OFCCP) at the U.S. Department of Labor spoke on Monday, July 6, 2020 to lead off the National Industry Liaison Group’s 2020 Virtual Conference.  Director Leen spoke extensively on OFCCP’s upcoming plans and areas of focus in compliance reviews.  Highlights of Director Leen’s presentation include: 1.       During compliance reviews contractors should be able to show efforts to work with Historically Black Colleges and Universities (HBCUs) and members of the Hispanic Association of Colleges and Universities (HACU). 2.       Contractors should explore and understand OFCCP’s Indian and Native American Employment Rights Program (INAERP), which allows contractors to give preference to Indians and Native Americans if the contractor is working on or near an Indian Reservation. 3.       Audit scheduling letters for Vietnam Era Veterans Readjustment Assistance Act (VEVRAA) Focused Reviews are scheduled to be released in the next couple of weeks.  OFCCP released a list of contractors who can expect to receive an audit scheduling letter in November 2019. Practice tip:  Contractors on OFCCP’s audit scheduling list should contact counsel as soon as possible to pre-audit their VEVRAA compliance to evaluate, and fix, potential compliance deficiencies, and prepare to assemble the documentation and data that OFCCP will request. 4.       During OFCCP audits contractors should be prepared to defend impacts of any recent layoffs, furloughs and pay reductions. Practice tip:  To proactively defend decisions, contractors should consider performing a disparity analysis and making sure documentation is in order to defend selections that may have an adverse impact on protected groups. 5.       Accommodations will be a big focus for OFCCP this fiscal year.  OFCCP plans to initiate Accommodation Focused Reviews to evaluate both disability and religious accommodation efforts.  OFCCP also plans to publish guidance on accommodation best practices. Practice tip: Contractors should continue to document all requests for accommodations and the contractor’s response to each such request. 6.       OFCCP will prioritize evaluating discrimination based on sexual orientation and gender identity.  While both sexual orientation and gender identity have been protected under Executive Order 11246 for several years, following the Supreme Court’s decision in Bostock, OFCCP plans to engage with EEOC on enforcing these protections. 7.       OFCCP plans to begin Construction Contractor Compliance Reviews by the end of 2020 or the beginning of 2021. Practice tip:  Construction contractors should prepare accordingly now to identify potential compliance issues and fix them before facing an OFCCP review. 8.       OFCCP will continue to focus on disability discrimination and accommodation.  Director Leen recommends contractors focus not just on activity recruiting individuals with disabilities, but also promoting and supporting employee resource of affinity groups for individuals with disabilities. 9.       Director Leen believes OFCCP is on pace this year for its second highest total settlement recovery as the agency prioritizes Early Resolution Programs. 10.   Director Leen encouraged contractors to keep in mind all ten areas of protection under the laws enforced by OFCCP:  sex, race, color, religion, national origin, sexual orientation, gender identity, disability, veterans and compensation.

On Friday Office of Federal Contractor Compliance Programs (OFCCP) released an updated Voluntary Self-Identification of Disability Form (CC-305).  The new form is much shorter than the previous form and now fits on a single page.  The announced purpose of the change is to increase the response rate to the form. Covered federal contractors are required to invite all applicants and new hires to self-identify as an individual with a disability using this form.  Once every five years, a contractor must re-extend the invitation to self-identify disability status to current employees.  While covered federal contractors have some discretion with the format and content of invitations to self-identify race, ethnicity, gender and veteran status, there is little to no discretion with the format and content of the invitation to self-identify disabilities. Covered federal contractors have until August 4, 2020 to implement the new form into their applicant and employee self-identification process.

The Equal Employment Opportunity Commission (EEOC) announced May 7, 2020 that it will delay until March 2021 the annual filing of the EEO-1 Component 1 Report, which requires covered employers to report by job category the race, ethnicity and gender of its employees. At that time, pending approval from the OMB, covered employers will be required to file both the 2019 and 2020 EEO-1 Component 1 Reports. Covered employers include those with 100 or more employees and federal contractors with 50 or more employees and a federal contract of $50,000 or more. Note that employers with less than 100 employees who are owned or affiliated with another entity such that the combined employee count is over 100 employees may also be required to file this report. Covered employers are encouraged to confirm that all employees have had the opportunity to voluntarily self-identify their gender, ethnicity and race and to make sure records are kept of this information for future reporting in 2021. If an employer identifies employees who have not responded to this voluntary invitation, employers may re-extend the invitation and/or rely on employment documents such as an I-9 or visual observation. If an employer needs to rely on visual observation, it will be easier to gather this information now rather than waiting until 2021. Polsinelli will continue to monitor developments with the EEO-1 report.

The Equal Employment Opportunity Commission (EEOC) announced May 7, 2020 that it will delay until March 2021 the annual filing of the EEO-1 Component 1 Report, which requires covered employers to report by job category the race, ethnicity and gender of its employees.  At that time, pending approval from the OMB, covered employers will be required to file both the 2019 and 2020 EEO-1 Component 1 Reports. Covered employers include those with 100 or more employees and federal contractors with 50 or more employees and a federal contract of $50,000 or more.  Note that employers with less than 100 employees who are owned or affiliated with another entity such that the combined employee count is over 100 employees may also be required to file this report. Covered employers are encouraged to confirm that all employees have had the opportunity to voluntarily self-identify their gender, ethnicity and race and to make sure records are kept of this information for future reporting in 2021.  If an employer identifies employees who have not responded to this voluntary invitation, employers may re-extend the invitation and/or rely on employment documents such as an I-9 or visual observation.  If an employer needs to rely on visual observation, it will be easier to gather this information now rather than waiting until 2021. Polsinelli will continue to monitor developments with the EEO-1 report.