Philadelphia Industry Liaison Group
The Liberty ILG
Save the date for the 2023 Quarterly meetings. Topics and agenda items will be sent out prior to these dates:
First Quarter Meeting: Thursday, February 16, 2023
Second Quarter Meeting: Thursday, May 18, 2023
Third Quarter Meeting: Thursday, August 17, 2023
Fourth Quarter Meeting: Thursday, November 16, 2023
See you then!
Members, we want to hear from you. Please take a brief moment to complete this member survey.
This survey is developed for our members to better help us plan our 2023 PILG topics and activities.
Click HERE for Survey or access the QR Code:
Thank you.
The election results for the 2023 PILG Chapter Officers were announced at the Q4 chapter meeting on Thursday, November 17th, 2022.
Congratulations to the 2023 board members:
Chair: Tracey Hamilton; Affirmative Action Officer, Southeastern Pennsylvania Transportation Authority (SEPTA)
Vice-Chair: Melissa (Missy) Thomas; Senior Affirmative Action Specialist; Virginia Tech
Secretary: Julie Garcia; People Operations Coordinator
Treasurer: Jo Bennett; partner, Schnader Harrison Segal & Lewis LLP
During the Q4 meeting, the board recognized Allison Fantine for her leadership and contribution serving as PILG Chair. She will be missed. See slide HERE.
Thank you to our members for the time to submit your ballot. We look forward to 2023!
We have an exciting 3-hours planned for our members. We are always delighted for the discussions with our partners from NILG, OFCCP, EEOC, and Jackson Lewis. We always welcome their presentations for our members.
We are pleased to have a special discussion on “Digital accessibility: In the News and In Your Workplace” delivered by Janet /Fiore and Mike Mangos from the Sierra Group, and Matt Camardella from Jackson Lewis.
Click HERE for the full agenda.
See you then!
The Philadelphia Liberty ILG Chapter is conducting its annual election for chapter officers, via electronic ballot, beginning October 28th and ending November 10th. While the election process usually takes place in person during our 4th Quarterly (Q4) meeting, due to the ongoing virtual nature of our chapter meetings, an anonymous online ballot will be used to collect responses. The results of the election will be announced at the Q4 chapter meeting on Thursday November 17th. Completion of the electronic ballot should take no longer than 2 minutes. Please take the time to complete the election ballot for our 2023 officers using the link below.
Please note that due to firewalls many of our organizations have in place, you may be unable to access the ballot through your organization’s server. We encourage you to use a personal device if necessary to ensure you cast your ballot.
Make your vote count!
Federal contractors required to report diversity stats to government, but public not able to see contractor hiring information.
The Labor Department branch charged with enforcing affirmative action rules for federal contractors is working to keep those same companies’ demographic data out of the public eye.
The government argues that the information could potentially hurt the contractors competitively, and that it has a legal requirement to give each of the approximately 15,000 companies a chance to object to an exhaustive Freedom of Information Act request from the Center for Investigative Reporting asking that they turn over the information.
Thousands of contractors collecting over $630 billion in taxpayer dollars each year keep everything from office cafeterias to the military running for the American people, but with virtually no public transparency about how they are faring at hiring and promoting women and minorities.
The government requires any federal contractor with 50 or more workers to fill out an annual EEO-1 report, which includes information on the race, ethnicity, and gender of employees. But that information is typically under seal.
After losing a court skirmish over disclosure, the Labor Department’s Office of Contract Compliance Programs (OFCCP) said it is willing to release demographic workforce data for the thousands of companies that do business with the government. But not without giving each of them an opportunity to argue against the disclosure of their information by Oct. 19.
The agency told contractors it “has reason to believe” they may be covered by Exemption 4, a FOIA carve-out for trade secrets and other commercial information. But the nonprofit news organization argues that a court already decided the information they’re seeking isn’t commercial.
“It’s extremely unique in the number of iterations it’s taken and the complete agency and industry pushback and claw back to ensure that this information isn’t disclosed,” Victoria Baranetsky, general counsel for the CIR, told Bloomberg Law.
Once the Labor Department has decided whether it agrees with the objections it invited the companies to file through a Federal Register notice, it will inevitably face more litigation from companies, the CIR, or both.
“They’re in a bind at that point, because they either disclose it and face litigation against those agencies or are concerned that we will file a lawsuit,” Baranetsky said.
Exemption 4
Companies that do business with the government are held to higher nondiscrimination standards than just Title VII of the Civil Rights Act of 1964, which applies to all employers, and are required to conduct affirmative action plans, which are subject to audit by the OFCCP.
The CIR first requested the EEO-1s of large tech companies in January 2018, seeking the information through a series of FOIAs filed with the Labor Department. But most of the companies—including Oracle and Palantir—objected to the release of their records under Exemption 4, and the DOL backed them.
CIR sued the Labor Department but the suit was voluntarily dismissed after the agency chose to comply with the request. But when CIR requested updated records, in 2019, the DOL declined because it was waiting for the U.S. Supreme Court to rule in Food Marketing Inst. v. Argus Leader Media.
The high court ruled in June 2019 that records are only confidential under Exemption 4 if they are both treated as private by the companies and provided to the government under an assurance of privacy. The ruling also established a test for determining if records fit that standard.
The CIR sued over those records, and in December 2019 a judge in the Northern District of California applied Argus and ordered the DOL to release the records, ruling that “the Government has failed to make a showing that the demographic information contained in the EEO-1 reports is commercial,” which is required to qualify for Exemption 4.
That was the only ruling to address the commerciality of EEO-1 forms, and the DOL didn’t appeal. At the time, the contractor community saw the ruling as a threat to the confidentiality of their diversity records.
“It’s interesting when you apply this rationale here: I don’t think a reasonable person could argue that diversity data is on par with trade secrets or secret formulas,” said Gunita Singh, a staff attorney for the Reporters Committee for Freedom of the Press.
‘Unduly Burdensome’
In January 2019, CIR reporter Will Evans submitted the latest FOIA request seeking approximately 15,000 EEO-1 forms submitted by federal contractors from 2016 through 2020. The OFCCP initially called that request “unduly burdensome” because of the volume of records and the company-by-company consultation the agency said it believed was necessary.
The CIR argues that the DOL could just publish the records proactively, per the 2019 ruling. But the DOL said that although that ruling found that EEO-1 forms are not commercial information, it “does not have any binding effect” beyond the specific EEO-1 forms being sought through that litigation.
In a June 15 correspondence the DOL said that it has reason to believe the information could fall under Exemption 4. The agency said it would risk “substantial liability in reverse FOIA actions” if it just hands over the records.
The CIR indicated in a May correspondence that it would sue the DOL a third time if it didn’t produce the records.
“It’s unfortunate that the agency considers a court order to not have the force of law,” Baranetsky said. “It’s confounding, quite frankly.”
The Equal Employment Opportunity Commission collects EEO-1 forms from all companies with more than 100 employees, then feeds the OFCCP those forms for companies that identify as federal contractors.
While they are in the EEOC’s hands, the EEO-1s are protected by Title VII, which calls for criminal sanctions if records leak. But those restrictions don’t apply to OFCCP.
Craig Leen, who led the OFCCP during the Trump administration, said this is a “loophole” that needs to be closed by Congress or the courts because the ultimate intent of Title VII was to make EEO-1 forms confidential.
“Congress has not passed a law saying that EEO-1 information should be released through OFCCP,” said Leen, now a partner at K&L Gates. “They have passed a law saying EEO-1 data should be protected from disclosure and it’s a crime for the EEOC to release it.”
ESG Investors
The Labor Department did not respond to a request for comment, including on questions about the resources being allocated to process the objections. Leen estimated the agency would have to dedicate at least three staff, including one economist and at least one lawyer.
Using the Federal Register as a forum also means that the companies’ objections will be public. Lauren B. Hicks, an attorney at Ogletree Deakins helping contractors respond to the FOIA request said that the companies are weighing the optics associated with their choice to object or not.
“While they don’t want to appear to be hiding anything, they’re also concerned about putting forward data that isn’t necessarily logical or in line with their own internal systems and practices,” Hicks said.
Contractors tend to argue that the EEO-1 is an imperfect view into how the company is doing in boosting diversity. When OFCCP audits companies it also takes into account the candidate pool and location of the company, for example.
Disclosure could also benefit ESG-oriented investors who want more diversity information from the many large public companies that are also government contractors.
Dozens of investors led by Boston Walden Trust sent a letter to the Securities and Exchange Commission in November 2021 supporting an EEO-1 disclosure requirement. State Street, an asset manager handling $3.9 trillion, announced in January that it is prepared to vote against board leaders of S&P 500 companies that don’t disclose their EEO-1 reports voluntarily.
Meredith Benton, founder of Whistle Stop Capital LLC, an ESG-focused consulting firm, pointed to a concept in finance in which a “universal owner,” like a pension fund or other institutional investors, has a fiduciary duty not to put money in places that will hurt the broader economy or society. When it comes to federal contractors, the public is the universal owner, she said.
“If the government is giving contracts to companies that are causing societal harm, even if they are providing a service, then that’s out of alignment with the broader intention of the government,” Benton said.
To contact the reporter on this story: J. Edward Moreno in Washington at jmorenodelangel@bloombergindustry.com
To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergindustry.com; Rebekah Mintzer at rmintzer@bloombergindustry.com
For Immediate Release, October 19, 2022
Covered Employers Required by Law to Display Poster at Work Site
WASHINGTON – Today, the U.S. Equal Employment Opportunity Commission (EEOC) released the ‘Know Your Rights’ poster, which updates and replaces the previous “EEO is the Law” poster. Covered employers are required by federal law to prominently display the poster at their work sites. The EEOC’s web page for the poster provides information about where to post it. The poster also includes a QR code for applicants or employees to link directly to instructions for how to file a charge of workplace discrimination with the EEOC.
A number of the laws that the EEOC enforces require covered employers to post a notice describing the Federal laws prohibiting job discrimination. The poster summarizes these laws and explains that employees or applicants can file a charge if they believe that they have experienced discrimination. The poster shares information about discrimination based on:
“The new ‘Know Your Rights’ poster is a win-win for employers and workers alike,” said Chair Charlotte A. Burrows. “By using plain language and bullet points, the new poster makes it easier for employers to understand their legal responsibilities and for workers to understand their legal rights and how to contact EEOC for assistance. The poster advances the EEOC’s mission both to prevent unlawful employment discrimination and remedy discrimination when it occurs.”
The new “Know Your Rights” poster includes these changes:
The poster is available in English and Spanish and will be available in additional languages at a later date.
The posters should be placed in a conspicuous location in the workplace where notices to applicants and employees are customarily posted. In addition to physically posting, covered employers are encouraged to post a notice digitally on their websites in a conspicuous location. In most cases, electronic posting supplements the physical posting requirement. In some situations (for example, for employers without a physical location or for employees who telework or work remotely and do not visit the employer’s workplace on a regular basis), it may be the only posting. Covered employers are subject to fines for noncompliance.
The Americans with Disabilities Act (ADA) requires that notices of Federal laws prohibiting job discrimination be made available in a location that is accessible to applicants and employees with disabilities that limit mobility.
This month, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs joins the Office of Disability Employment Policy in celebrating the 77th anniversary of National Disability Employment Awareness Month. NDEAM celebrates the contributions of America’s workers with disabilities, past and present, and showcases supportive, inclusive employment policies and practices. This year’s theme is “Disability: Part of the Equity Equation.”
In his Presidential Proclamation for NDEAM, President Biden stated that his Administration’s Labor Department is protecting the rights of workers with disabilities in the private sector, cracking down on employers who discriminate, and ending the unfair use of sub-minimum wages. As the President declared, “This month, let us acknowledge workers with disabilities who make our communities, our economy, and our Nation stronger. Let us continue the legacy of generations of disability rights activists who have fought for equal employment opportunities, integrated workplaces, and equal pay for equal work. Let us deliver the promise of America to all Americans.”
OFCCP enforces Section 503 of the Rehabilitation Act of 1973, as amended, and works to ensure that workers with disabilities have equal opportunity in the workplace. In September, OFCCP filed a lawsuit against a federal contractor after an investigation found that the employer allegedly fired an employee with a disability for having a disability and requesting a reasonable accommodation. For more information on this case, and to read the lawsuit, visit OFCCP’s News Releases webpage.
As part of its efforts to advance equal opportunity for people with disabilities, OFCCP provides federal contractors with technical assistance and guidance on their anti-discrimination and affirmative action obligations under the law. The agency also provides contractors with assistance in analyzing their utilization of individuals with disabilities against the aspirational goal established by OFCCP that at least seven percent of the workforce comprises persons with disabilities.
The initiatives to promote disability inclusion and reasonable accommodations at work include:
At OFCCP, we protect workers, promote equal employment opportunity, and enforce the law. OFCCP encourages contractors to observe NDEAM by following the 31 Days of NDEAM initiative and by joining Labor Secretary Marty Walsh, the Office of Disability Employment Policy, and Assistant Secretary of Labor for Disability Employment Policy Taryn Williams on October 13, 2022 at 10:00AM (EDT) as they host an Employer Chat on Workplace Mental Health and Well-Being.
You can find additional initiatives for NDEAM, including posters in English and Spanish at the “Learn More” HERE.
Mark your calendars and register for the inaugural Federal Interagency Military Spouse Career Expo hosted by the USDA Military Spouse Association. This event is a collaborative effort featuring federal agencies dedicated to hiring military spouses.
First Lady Jill Biden will be the Special Guest Speaker, providing opening remarks. The First Lady will be followed by sessions from the Office of Personnel Management highlighting federal hiring and military spouse employment. You will learn how to target specific jobs and gain a better understanding of the federal hiring process.
Event Date and time: October 12, 2022 from 10:00 a.m. – 4:00 p.m. ET.
Register HERE
Click HERE for detailed flyer
In recognition of National Disability Employment Awareness Month, the Mid-Atlantic Region would like to acknowledge the important role people with disabilities play in creating a diverse and inclusive workforce.
OFCCP’s mission is to protect workers, promote equal opportunity, and enforce the law. One of OFCCP’s priorities in FY 2023 is to 1) promote greater contractor compliance; 2) strengthen outreach and investigations to engage and empower the workers to identify barriers within the workplace.
The Mid-Atlantic has seen tremendous strides with individuals with disabilities and the great diversity, equity, and inclusion programs the federal contractors have created. We have noticed an increase in those self-identifying as an individual with disabilities. However, we know more work needs to be accomplished in this arena.
In a recent Administrative Complaint Filing (see HERE), OFCCP has filed a lawsuit against Resource Metrix, a cyber security firm and federal contractor in Alexandria, VA after an investigation found a disabled employee was fired for being disabled and requesting a reasonable accommodation (ergonomic chair). This filing shows individuals with disabilities’ rights and protections in the workforce still need to be protected and there are some federal contractors who are not willing to even provide low-cost accommodations. https://www.dol.gov/newsroom/releases/ofccp/ofccp20221005-0
Visit HERE for more agency news.