2016-15671. Proposed Renewal of the Approval of Information Collection Requirements; Comment Request

ACTION:

Notice.

SUMMARY:

The Department of Labor (DOL), as part of its continuing effort to reduce paperwork and respondent burden, conducts a pre-clearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3506(c)(2)(A). This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. The Office of Federal Contract Compliance Programs (OFCCP) is soliciting comments concerning its proposal to renew the Office of Management and Budget (OMB) approval of the information collection: “Form CC-4, Complaint Involving Employment Discrimination by a Federal Contractor or Subcontractor.” The current OMB approval for Form CC-4 expires on August 31, 2017. A copy of the proposed information collection request can be obtained by contacting the office listed below in the FOR FURTHER INFORMATION CONTACT section of this Notice or by accessing it at www.regulations.gov.

DATES:

Written comments must be submitted to the office listed in the addresses section below on or before August 30, 2016.

ADDRESSES:

You may submit comments, identified by Control Number 1250-0002, by one of the following methods:

Electronic comments: Through the Federal eRulemaking Portal at www.regulations.gov. Follow the instructions for submitting comments.

Mail, Hand Delivery, Courier: Address comments to Debra Carr, Director, Division of Policy and Program Development, Office of Federal Contract Compliance Programs, 200 Constitution Avenue NW., Room C3325, Washington, DC 20210.

Instructions: Please submit one copy of your comments by only one method. All submissions received must include the agency name and OMB Control Number identified above for this information collection. Commenters are strongly encouraged to submit their comments electronically via the www.regulations.gov Web site or to mail their comments early to ensure that they are timely received. Comments, including any personal information provided, become a matter of public record and will be posted to the www.regulations.gov Web site. They will also be summarized and/or included in the request for OMB approval of the information collection request.

FOR FURTHER INFORMATION CONTACT:

Debra Carr, Director, Division of Policy and Program Development, Office of Federal Contract Compliance Programs, 200 Constitution Avenue NW., Room C3325, Washington, DC 20210. Telephone: [phone] (voice) or [phone] (TTY) (these are not toll-free numbers). Copies of this notice may be obtained in alternative formats (e.g. large print, braille, audio recording), upon request, by calling the numbers listed above.

SUPPLEMENTARY INFORMATION:

 

I. Background: The Office of Federal Contractor Compliance Programs (OFCCP) administers and enforces the three equal employment opportunity laws listed below.

• Executive Order 11246, as amended (E.O. 11246)
• Section 503 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 793 (Section 503)
• Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended, 38 U.S.C. 4212 (VEVRAA)

These authorities prohibit employment discrimination by Federal contractors and subcontractors and require them to take affirmative action to ensure that equal employment opportunities are available regardless of race, color, religion, sex, sexual orientation, gender identity, national origin, disability, or status as a protected veteran. Additionally, Federal contractors and subcontractors are prohibited from discriminating against applicants and employees for asking about, discussing, or sharing information about their pay or, in certain circumstances, the pay of their co-workers. Federal contractors and subcontractors are further prohibited from harassing, intimidating, threatening, coercing, or discriminating against individuals who file a complaint, assist or participate in any OFCCP investigation, oppose any discriminatory act or practice, or otherwise exercise their rights protected by OFCCP's laws.

No private right of action exists under the authorities that are enforced by OFCCP, i.e., a private individual may not bring a lawsuit against an employer (or prospective employer) for noncompliance with its contractual obligations enforced by OFCCP. However, any employee or applicant for employment with a federal contractor or subcontractor may file a complaint with OFCCP alleging discrimination or failure to comply with affirmative action obligations. OFCCP encourages such employees and applicants to file their complaints by completing its complaint form (“Form CC-4”). OFCCP investigates the complaint but retains the discretion whether to pursue administrative or judicial enforcement. If a complaint is filed under EO 11246 or Section 503, OFCCP may refer it to the U.S. Equal Employment Opportunity Commission (EEOC).^[1] OFCCP investigates all complaints filed under VEVRAA. OFCCP may refer complaints under any law to the Department of Justice (DOJ).

Under E.O. 11246 the authority for collection of complaint information is Section 206(b). The implementing regulations which specify the content of this information collection are found at 41 CFR 60-1.23. Under VEVRAA the authority for collecting complaints information is at 38 U.S.C. 4212(b), and the implementing regulations which specify the content of VEVRAA complaints are found at 41 CFR 60-300.61(b). The statutory authority for collecting complaint information under Section 503 is at 29 U.S.C. 793, and the implementing regulations which specify the content of Section 503 complaints are found at 41 CFR 60-741.61(c). This information collection request covers the recordkeeping and reporting requirements for Form CC-4.

II. Review Focus: DOL is particularly interested in comments which:

• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submissions of responses.

III. Current Actions: DOL seeks the approval of the extension of this information collection instrument in order to carry out its responsibility to enforce the affirmative action and nondiscrimination provisions of the three authorities, which it administers.

Type of Review: Renewal.

Agency: Office of Federal Contract Compliance Programs.

Title: Complaint Form CC-4, Complaint Involving Employment Discrimination by Federal Government Contractors or Subcontractors.

OMB Number: 1250-0002.

Agency Number: None.

Affected Public: Business or other for profit, Not-for-profit institutions.

Total Respondents: 753.

Total Annual Responses: 753.

Average Time per Response: 1 hour.

Estimated Total Burden Hours: 753.

Frequency: On occasion.

Total Burden Cost (capital/startup): $0.

Total Burden Cost (operating/maintenance): $61.50.

Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of the information collection request; they will also become a matter of public record.

Debra A. Carr,

Director, Division of Policy and Program Development, Office of Federal Contract Compliance Programs.

SUPPORTING STATEMENT

U.S. DEPARTMENT OF LABOR

OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS

AGREEMENT APPROVAL PROCESS FOR USE OF COMPLAINT FORM CC-4

OMB No.1250-0002

A. JUSTIFICATION

The Office of Federal Contract Compliance Programs (OFCCP) is responsible for administering three equal opportunity laws:

• Executive Order 11246, as amended (E.O. 11246)
• Section 503 of the Rehabilitation Act of 1973, as amended (Section 503)
• Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended, 38 U.S.C. 4212 (VEVRAA)

E.O. 11246 prohibits federal contractors and subcontractors ^[2] from discriminating in employment on the basis of race, color, religion, sex, sexual orientation, gender identity, and national origin. It also requires contractors to take affirmative action to ensure that equal opportunity is provided in all aspects of their employment. Additionally, E.O. 11246 prohibits contractors from taking adverse employment actions against applicants and employees for asking about, discussing, or sharing information about their pay or, in certain circumstances, the pay of their co-workers. E.O. 11246 applies to contractors holding a federal government contract or subcontract of more than $10,000, or federal government contracts or subcontracts that have, or can reasonably expect to have, an aggregate total value exceeding $10,000 in a 12-month period. E.O. 11246 also applies to federal government bills of lading, depositories of federal funds in any amount, and to financial institutions that are issuing and paying agents for U.S. savings bonds.

Section 503 prohibits discrimination by covered contractors against individuals on the basis of disability, and requires affirmative action on behalf of qualified individuals with disabilities. Section 503 requirements apply to federal contracts and subcontracts in excess of $15,000.^[3]

VEVRAA prohibits employment discrimination against protected veterans, namely disabled veterans, recently separated veterans, active duty wartime or campaign badge veterans, and Armed Forces service medal veterans. VEVRAA requires contractors to take affirmative action to hire, advance in employment and otherwise treat protected veterans without discrimination. VEVRAA requirements apply to federal contracts and subcontracts of $150,000 or more.^[4]

Pursuant to the upcoming expiration of OMB No. 1250-0002, this information collection request (ICR) seeks approval of OFCCP's complaint information collection form, titled “Complaint Involving Employment Discrimination by a Federal Contractor or Subcontractor (“complaint form” or “Form CC-4”). This ICR also seeks approval of the revised complaint form and accompanying instructions page to reflect two amendments to Executive Order 11246: (1) Executive Order 13762, which added “sexual orientation” and “gender identity” as protected bases ^[5] and (2) Executive Order 13665, which added a basis to protect any applicant or employee who inquires about, discusses, or discloses compensation.^[6] There are no substantive changes to the complaint form that impact burden.

1. LEGAL AND ADMINISTRATIVE REQUIREMENTS

No private right of action exists under E.O. 11246, Section 503 or VEVRAA, which means that a private individual may not bring a lawsuit against an employer or prospective employer for noncompliance with its obligations under the authorities enforced by OFCCP. However, any employee or applicant for employment with a contractor may use a complaint form to file a complaint with OFCCP alleging discrimination or failure to comply with affirmative action obligations.^[7] OFCCP investigates these complaints and retains the discretion whether to pursue administrative or judicial enforcement.

To file a complaint with OFCCP, a complainant or authorized representative may complete Form CC-4. Alternatively, a complainant may send a letter including the name, address, and telephone number of the complainant, the name and address of the contractor or subcontractor and a description of the acts considered to be discriminatory and any other pertinent information.

A complaint alleging discrimination based on race, color, religion, sex, sexual orientation, gender identity, or national origin must be filed within 180 days from the date of the alleged discrimination, unless the time for filing is extended for good cause shown. Complainants alleging discrimination for discussing, disclosing, or inquiring about pay also have 180 days from the date of the alleged discrimination to file a complaint. If the complaint alleges a violation based on disability or status as a protected veteran, the complaint must be filed within 300 days unless the time for filing is extended for good cause shown. Some examples of what may constitute good cause include: mental or physical incapacity; military deployment, incarceration, or possibly being unaware of the discrimination; misleading information provided by the employer or Agency that prevents or delays filing; or information withheld by the employer that prevents or delays filing.

OFCCP may refer complaints filed on bases covered under Executive Order 11246 or Section 503 to the U.S. Equal Employment Opportunity Commission (EEOC) as described in the most recent formal agreement entered into by OFCCP and the EEOC.^[8] Complaints filed under Section 503 may be referred to EEOC using the procedures found at 41 CFR 60-742.5(d) and 29 CFR 1641.5(e). OFCCP investigates all complaints filed under VEVRAA.

2. USE OF COLLECTED MATERIAL

The complaint form is used by OFCCP staff as the first step in the initiation of a complaint investigation. If the complaint is timely and appears to raise discrimination or retaliation issues within OFCCP's jurisdiction, then a complaint investigation is initiated. A standardized complaint form helps guide complainants in providing important information about their discrimination allegations and reduces the time it takes OFCCP staff to determine jurisdiction. This form improves efficiency in responding to complainants and in initiating investigations.

3. USE OF INFORMATION TECHNOLOGY

Complainants can download or electronically submit the complaint form via OFCCP's Web site at http://www.dol.gov/​ofccp/​regs/​compliance/​pdf/​pdfstart.htm.

4. DESCRIPTION OF EFFORTS TO IDENTIFY DUPLICATION

Information collected on the complaint form is unique to the individual complainant and no duplication is possible.

5. IMPACT ON SMALL BUSINESSES

OFCCP complaints are not filed by business entities but by non-business entities such as individuals or organizations. Therefore, this information collection does not have a significant economic impact on a substantial number of small entities.

6. CONSEQUENCES IF INFORMATION WERE COLLECTED LESS FREQUENTLY

There is no schedule for the collection of this information. Nonetheless, if OFCCP did not collect this information, there could be a detrimental impact on its ability to carry out its mission and enforce the non-discrimination protections and affirmative action obligations in E.O. 11246, Section 503, and VEVRAA.

7. SPECIAL CIRCUMSTANCES

There are no special circumstances for the collection of this information.

8. CONSULTATION OUTSIDE THE AGENCY

OFCCP will address public comments at the end of the 60-day public comment period.

9. GIFTS OR PAYMENTS

OFCCP does not provide gifts or payments to respondents.

10. CONFIDENTIALITY OF INFORMATION

OFCCP complies with the Privacy Act by maintaining confidentiality of the information collected on the complaint form. However, during a complaint investigation, the agency will provide a copy of the complaint form to the contractor and the information contained on the form may be used in the course of settlement negotiations with the contractor and/or in the course of presenting possible disclosure to opposing counsel. Before providing a copy of the complaint form, the agency redacts it to protect confidential information that would easily identify someone other than the complainant. A Privacy Act disclosure statement is included in the instructions for the complaint form, which explains the protections afforded to the information collected on the complaint form and describes how the information may be used in settlement negotiations, verified or disclosed.

11. QUESTIONS OF SENSITIVE NATURE

Although the complaint form does not specifically request sensitive or protected information, the complainant may disclose such information when describing the circumstances that led to filing the complaint. As noted above, a Privacy Act disclosure statement is included in the instructions with the form.

12. INFORMATION COLLECTION HOUR BURDEN

OFCCP received 790 complaints in fiscal year (FY) 2013, 699 complaints in FY 2014, and 769 complaints in FY 2015, which amount to an average of 753 complaints over the last three fiscal years. Based on its experience with complainants and staff, OFCCP estimates that it takes approximately one hour for the completion and submission of the complaint form. OFCCP projects that this information collection will impose a burden of 753 hours to respondents (average rate of 753 annual complaints multiplied by one hour).

OFCCP estimates that the cost of completing the CC-4 is $16,671 (i.e., 753 hours multiplied by $22.14 per hour).^[9] OFCCP assumes the maximum cost burden of completing a complaint form by calculating in the cost estimate that all complainants lose an hour of work to file a complaint.

13. INFORMATION COLLECTION COST BURDEN

There are no capital or start-up costs or total operation, maintenance or purchase of services components with filing a complaint. The cost for the complainant is estimated at $0.82 ($0.47 for a stamp to mail the complaint; $0.30 for paper and copying the two sheets of paper; and $0.05 for an envelope). OFCCP receives an annual average of 753 complaints and estimates that approximately 90 percent of complaints are submitted electronically by facsimile or email while the other 10 percent are submitted by mail. Therefore, OFCCP estimates that the 10 percent, or 75 complaints, will cost complainants $61.50 annually (75 complaints multiplied by $0.82).

14. COST TO FEDERAL GOVERNMENT

The cost to the Federal Government (OFCCP) for receiving the forms, reviewing them for jurisdiction and timeliness, and determining their disposition is estimated at $59,645.13 (753 complaints multiplied by a cumulative labor cost of $79.21 per complaint).

The Federal labor cost reflects the 2.25 hours it takes OFCCP staff to process the form and includes one hour for an administrative support staff (GS-6) to review the complaint and check jurisdiction, one hour for a professional staff (GS-13) to verify the jurisdiction and prepare correspondence, and 0.25 hours for a manager (GS-14) to review and sign the documents. This cost was determined by surveying OFCCP's regional offices on the amount of time it takes to process a complaint. The calculation for the labor costs are detailed below.

Grade/step	Wage rate 10	Time (hours)	Total (wage rate × hours)
6/10	$19.62	1	$19.62
13/10	46.00	1	46.00
14/10	54.36	0.25	13.59
Cumulative labor cost per complaint			79.21

15. PROGRAM CHANGES OR BURDEN ADJUSTMENTS

Based on the three-year average of complaints received, OFCCP expects to process more complaints (753) than under the previous approved ICR (747). The small increase in burden hours is detailed in the chart below.

	Responses	Burden hours
Current	747	747
Proposed	753	753
Adjustment increase	+6	+6

16. PUBLICATION OF DATA FOR STATISTICAL USE

OFCCP will not publish the data collected on the CC-4.

17. APPROVAL NOT TO DISPLAY THE EXPIRATION DATE

OFCCP is not seeking approval to not display the expiration date in this information request.

18. EXCEPTION TO THE CERTIFICATION STATEMENT

OFCCP is not seeking exceptions to the certification statement in this information request.

B. STATISTICAL METHODS

This information collection does not use statistical methods.

Instruction Sheet

Use this form to file a complaint against an employer for violating any of the three laws the Office of Federal Contract Compliance Programs (OFCCP) enforces:

• Executive Order 11246, as amended;
• Section 503 of the Rehabilitation Act of 1973, as amended; and the
• Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended.

These laws make it illegal for companies doing business with the Federal Government to discriminate against job applicants and employees based on race, color, religion, sex, sexual orientation, gender identity, national origin, disability status and status as a protected veteran. This includes discrimination in pay and other forms of compensation. Executive Order 11246, as amended, also prohibits federal contractors from discriminating against applicants and employees for inquiring about, discussing, or disclosing compensation.

In addition, it is illegal for these companies to retaliate or otherwise take employment actions that negatively affect job applicants and employees because they filed a complaint, opposed acts or practices made unlawful by OFCCP's laws, or provided information or assistance during a compliance evaluation or complaint investigation. Retaliatory actions include any intimidation, threat, coercion or discrimination.

General Instructions:

Print or type the information when filling in the form. Tell us what happened, why you believe it was discrimination or retaliation, and who took the actions you described. Also, explain where and when these things happened, who saw it, and who may have information about what happened to you. Your signature is required on the complaint form, and if it is not on the form when you submit it, we will ask you to sign it.

The form includes a place for you to select the reason why you believe your employer discriminated or retaliated against you. If you believe you may have been discriminated or retaliated against for multiple reasons, such as race and sex, select all the protected bases that apply.

When describing what happened, tell us how it changed your work. For example, let us know if it caused you not to be hired for a job; caused you to be fired, laid off, demoted, or denied a promotion; or caused you to lose seniority or have your job assignment changed. You may have also been paid less than others doing the same or similar work. We also want to know if what happened involved training, pregnancy leave, harassment, accommodation for a disability or for religious observances, or segregation of facilities.

You can use a separate piece of paper if you need more space to describe what happened to you. Remember to attach the piece of paper to the complaint form when you are done.

If you are filing a complaint of discrimination because of your veteran status, remember to attach your Certificate of Release or Discharge from Active Duty (also known as DD Form 214). If one is not provided, we will ask you to provide one later. There are several categories of veterans protected by VEVRAA: disabled veterans, veterans separated from service for no more than three years, active duty wartime or campaign badge veterans, and armed forces service medal veterans. For more details on these categories, visit OFCCP's Web site at http://www.dol.gov/​ofccp/​posters/​Infographics/​ProtectedVet.htm.

Where to file the complaint?

You should send the completed form to the OFCCP regional office that covers the state where the alleged discrimination happened. Send OFCCP your form by U.S. mail, fax, or email. A list of regional offices and the states that each office covers can be found on the OFCCP Web site at: http://www.dol.gov/​ofccp/​contacts/​regkeyp.htm.

When to file a complaint?

Complaints based on your race, color, religion, sex, sexual orientation, gender identity, or national origin, must be filed within 180 days of the action(s) taken by your employer that you think was either discrimination or retaliation. The same 180-day time frame applies to pay transparency complaints alleging discrimination for discussing, disclosing, or inquiring about pay.

Complaints based on your disability or status as a protected veteran must be filed within 300 days of the action(s) taken by your employer that you think was either discrimination or retaliation.

Privacy Act Statement

The collection of information using this form is authorized by the laws OFCCP enforces, Title VII of the Civil Rights Act of 1964 (Title VII), as amended, and Title I of the Americans with Disabilities Act of 1990 (ADA), as amended. OFCCP uses this information to process complaints and conduct investigations of alleged violations of these employment discrimination laws. OFCCP will provide a copy of this complaint to the employer against whom it is filed, and when the matters alleged are covered by Title VII and/or the ADA, to the U.S. Equal Employment Opportunity Commission (EEOC). The information collected may be: 1) verified with others who may have knowledge relevant to the complaint; 2) used in settlement negotiations with the employer or in the course of presenting evidence at a hearing; or 3) disclosed to other agencies with jurisdiction over the complaint.

Providing this information is voluntary; however, failure to provide the information may delay or prevent OFCCP from investigating your complaint and, for matters covered by Title VII or the ADA, may affect your right to sue under those laws.

Public Burden Statement

The estimated time to complete this form is 1 hour, including time for reviewing instructions, filling out the form and sending it to OFCCP. Please note that you are not required to respond to this collection of information unless it displays a currently valid OMB Control Number.

If you have comments regarding the estimated burden or any other aspect of this complaint form, including suggestions for reducing the burden, send them to the OFCCP Policy Division (1250-0002), 200 Constitution Avenue NW., Room C3325, Washington, DC 20210. Please do not send the completed complaint form to this address.

Footnotes

1.  See, 41 CFR 60-1.24(a) and 41 CFR 60-741.5.

2.  Hereinafter, the use of the term “contractor” includes any contractors and subcontractors covered by the laws enforced by OFCCP. For E.O. 11246, the term includes federally assisted construction contractors.

3.  Effective October 1, 2010, the coverage threshold under Section 503 increased from $10,000 to $15,000, in accordance with the inflationary adjustment requirements in 41 U.S.C. 1908. See, Federal Acquisition Regulation; Inflation Adjustment of Acquisition-Related Thresholds, 75 CFR 53129 (Aug. 30, 2010).

4.  Effective October 1, 2015, the coverage threshold under VEVRAA increased from $100,000 to $150,000, in accordance with the inflationary adjustment requirements in 41 U.S.C. 1908. See, Federal Acquisition Regulation; Inflation Adjustment of Acquisition-Related Thresholds, 80 FR 38293 (July 2, 2015).

5.  See, Executive Order 13672, Further Amendments to Executive Order 11478, Equal Employment

Opportunity in the Federal Government, and Executive Order 11246, Equal Employment Opportunity, 79 FR 42971 (July 23, 2014).

6.  See, Executive Order 13665, Non-Retaliation for Disclosure of Compensation Information, 70 FR 20749 (April 11, 2014).

7.  Under Section 503 of the Rehabilitation Act of 1973 and the Vietnam Era Veterans' Act of 1974 individuals may file a complaint based on a contractor's failure to comply with its affirmative action obligations. See, 41 CFR 60-300.61(a) and 41 CFR 60-741.61(b).

8.  OFCCP has a Memorandum of Understanding with EEOC that includes coordinated processing of E.O. 11246 complaints, “Coordination of Functions; Memorandum of Understanding,” 76 FR 71029 (Nov. 16, 2011 ). See also, 41 CFR 60-1.24(a).

9.  OFCCP used the average amount that private industry employers spend in employee wages and salaries as reported in Employer Costs for Employee Compensation, December 2015, United States Department of Labor, Bureau of Labor Statistics, Table 5, available at http://www.bls.gov/​schedule/​archives/​ecec_​nr.htm.

10.  Average hourly rates are from the Office of Personnel Management (OPM) 2016 General Schedule Salary Table.