Pilot Project Tool Kit

Requesting a Pilot Project for a Variance to 29 C.F.R. Part 1614

Office of Federal Operations/Federal Sector Programs/Special Operations Division
3/9/2016

TABLE OF CONTENTS

1. Introduction
2. Background
3. Instructions for Requesting An Agency Variance from the Federal Sector Complaint Process at 29 CFR Part 1614 to Perform a Pilot Project
4. FAQs for Agency Variance Requests to Perform Pilot Projects

   Q1.      How does an agency submit a request to establish a variance/pilot project?

   Q2.      When should an agency submit a request to establish a variance/pilot project?

   Q3.      When will the pilot project begin after it is approved by the Commission?

   Q4.      Can an agency submit a general request to establish a variance/pilot project and supplement the request with additional details at a later date?

   Q5.      Is there a minimum or maximum duration for a variance/pilot project?

   Q6.      Can an agency require complainants to participate in a pilot project?

   Q7.      Can an agency establish a pilot project for specific, individual cases?

   Q8.      What specific information should the agency include in its request to establish a pilot project?

   Q9.      What safeguards must the agency include in its request to establish a pilot project?

   Q10.    Does the agency need to identify which employees are eligible to participate in the pilot project?

   Q12.    What should be considered when evaluating a pilot project while it is ongoing?.

   Q13.    What information should be included in the data analysis plan?.

   Q14.    What are the reporting requirements at the end of the pilot project?

   Q15.    May a sub-component request a variance/pilot project separate from the parent agency?

   Q16.    How should the agency notify employees and applicants of the pilot project?

   Q17.    How will the Commission approve pilot project requests?

   Q18.    What are some ways that the agency can obtain feedback from both participants in the pilot program as well as those using the current 1614 process?

   Q.19.   If the agency has a collective bargaining agreement, should it consult with the union when drafting its pilot proposal?

   Q.20.   Will EEOC respond to agency questions or provide additional assistance to agencies drafting pilot project requests?

I. Introduction

Complaints of employment discrimination by federal employees and applicants must be filed and processed through procedures established in 29 C.F.R. Part 1614. The Commission has made several efforts to improve this process, and yet EEOC is aware of the need for some agencies to reduce processing times while retaining the due process rights of complainants and ensuring the integrity of outcomes.  Agencies, stakeholders, and the Government Accountability Office (GAO) all have suggested, as an alternative to large-scale reform, that pilot projects be conducted to test the effectiveness of alternatives to the current Part 1614 process.  The EEOC created a process to approve agency pilot projects in its 2012 amendments to Part 1614 and 2015 edits to Management Directive 110.  This toolkit provides helpful information for agencies on how to apply for a variance to conduct a pilot project consistent with 29 C.F.R. § 1614.102(f) and MD-110 Chapter 1 Section X.

II. Background

Following a 2002 Commission meeting on federal sector reform - through which internal and external stakeholders including the National Employment Lawyers Association and EEOC's union suggested ways to change the EEO process - the agency convened an internal workgroup to study potential reforms.  The workgroup reached no consensus on large scale reform, but instead recommended, among other changes, that EEOC allow agencies to perform pilot projects to test potential alternatives.  

To act on the workgroup's recommendation, EEOC proposed to allow pilot projects with Commission approval in a Notice of Proposed Rulemaking (NPRM) that was approved by the Commissioners, circulated to federal agency EEO Directors for comment pursuant to Executive Order 12067, and ultimately published for public comment in the Federal Register on December 21, 2009.  The GAO also studied the issue and recommended that EEOC allow pilot projects in an August 2009 report, titled, "Pilot Projects Could Help Test Solutions to Long-Standing Concerns with the EEO Complaint Process." [1]  The GAO report stressed the importance of a "sound evaluation plan" to determine whether the pilot could become a successful alternative to the current regulatory process.[2]  According to GAO, such a plan must include clear objectives, measures linked to those objectives, criteria for determining performance, a method for isolating the effects of the pilot programs, a data analysis plan, and a data collection/storage/entry plan to ensure that the results are reliable.[3] 

After reviewing GAO's recommendation and receiving comments from federal agencies, individuals, civil rights groups, members of the bar, unions and other groups, the Commission issued a Final Rule, on July 25, 2012, that included a provision for agencies to seek a variance from the administrative process to perform pilot projects, codified at 29 C.F.R. § 1614.102(f).  In explaining the Commission's rationale for pilot projects, the Final Rule preamble noted that all agencies and several other commenters supported the change, and that pilot projects could provide "helpful data for future recommendations regarding changes to the federal sector EEO complaint process."[4] 

EEOC provided further guidance for agencies on how to request a variance and create a pilot project in a revised Management Directive 110 (MD-110).  Much like the regulations, MD-110 was approved by the Commission, coordinated with other federal agencies, and published for a sixty-day public input period before the final version was approved on August 5, 2015.  Since the publication of MD-110, agencies have requested that EEOC provide even more information about variances and pilot projects consistent with 29 C.F.R. § 1614.102(f) and MD-110.  In response, EEOC created this toolkit as an EEOC Resource Document to help agencies with their variance applications and pilot project proposals; it creates no new policies separate from those publicly vetted in 29 C.F.R. 1614.102(f) or MD-110.  The toolkit provides technical details about how an agency may apply for a variance in part III, and in part IV, it provides answers to Frequently Asked Questions.

III. Instructions for Requesting An Agency Variance from the Federal Sector Complaint Process at 29 CFR Part 1614 to Perform a Pilot Project

Email requests for a variance to perform a Pilot Project to federalsectoreeo@eeoc.gov, and include "Pilot Request" in the subject line.  Requests must be received between March 31 and April 15.  Requests received after April 15 will not be considered.  Requests must include all applicable information listed below.  To provide agencies with more time in the first year of these instructions, applications in FY 2016 are due April 29.

1. Provide Information About the Variance/Pilot Project
   • List the agency name (and, if applicable, sub-agency);
   • Identify the name(s), title(s), e-mail(s) and phone number(s) of the agency points of contact (POC) for the request, the pilot project, and data collection and evaluations;
   • Identify the specific section(s) of 29 C.F.R. Part 1614 from which the agency wishes to deviate;
   • Provide a detailed explanation of what the agency will do instead;
   • Explain the expected benefits of the pilot project;
   • Explain the expected effect on the EEO complaints processed in the pilot project;
   • Specify the proposed duration and dates of the pilot project;
   • Clearly define the stages in the pilot project and how the project will progress from start to finish;
   • Include information demonstrating the agency's current status of operating within regulatory guidelines for complaint processing (information should include EEO Form 462 indicators, Management Directive 715 self-assessment, Annual No FEAR Act Reports, list of Commission program evaluations (for example, Onsite Inspections), and any third-party evaluations such as Office of Inspector General evaluation reports or GAO reports); and
   • Identify any agreements, such as changes to a Collective Bargaining Agreement, that would be required for the agency to implement the pilot project.
2. Specify Who May be Subject to the Pilot Project
   • List the components, facilities, and/or positions that will be eligible to participate;
   • Describe the knowing and voluntary opt-in and opt-out provisions for participants; and
   • Identify the criteria for selecting participants.
3. Identify a Plan for Educating Employees and EEO Officials About the Pilot Project
   • Identify the methods that the agency will use to inform employees and applicants how the pilot project works, and that the pilot project is voluntary; and
   • Explain how the agency will train EEO staff and managers about the pilot project.
4. Safeguarding Worker Rights in the Pilot Project
   • Describe how the agency intends to maintain adequate records for a potential hearing or appeal;
   • Certify that the pilot project will ensure fairness, justice and neutrality, as well as voluntariness, with the ultimate goal of rooting out employment discrimination;
   • Certify the pilot project will not infringe or deny any of the statutory rights provided in the employment non-discrimination statutes that EEOC enforces; such as:
     • The right to have all personnel actions affecting both employees and applicants made free from discrimination based on race, color, religion, sex, national origin, age, disability, the use genetic information or paid differently for doing the same work as a member of the opposite sex;
     • The right to be notified of any final action taken on any complaint of discrimination filed by him thereunder;
     • Any rights the employee may have in another forum, such as mixed case rights with the Merit Systems Protection Board;
     • The right to file a civil action on a complaint of discrimination based on the above statutes or any subsequently issued Executive Orders:
       • Within 30 days of receipt of notice of final action taken by a department, agency or unit; or
       • Within 30 days of receipt of notice of decision upon an appeal from the agency final action; or
       • After 180 days of filing the original complaint with the department, agency or unit if no final action is received; or
       • After 180 days of filing an appeal and no decision is issued;
       • And for complaints of discrimination based on age after giving the Commission 30 days' notice of their intent to file a civil action of discrimination when they have not filed a complaint of discrimination based on age.
5. Explain the Pilot Project Evaluation and Data Plans
   1. Generally
      • Define the clear objectives for the pilot project;
      • Identify the metrics that will be used to measure the objectives;
      • Identify what data will be collected (for example, both baseline data before the pilot project begins as well as data from the pilot project itself);
      • Specify how the data will be collected;
      • Explain how the data will be entered and stored in a manner that protects the Personally Identifiable Information (PII) of participants;
      • Detail safeguards used to ensure the data is reliable and error free; and
      • Explain how the agency will control for other factors to isolate the impact of the pilot project itself (such as individual v. class complaints, issues alleged, and other potentially relevant factors).
   2. Provide a detailed explanation of quarterly evaluations
      • List the intervals, at least quarterly, for measuring on-going performance (this should include detailed time frames and schedules);
      • Explain how the performance will be evaluated and data analyzed, which should include, at least, information on the total number of complaints opting into (and out of) the pilot project, the average age of complaints in the pilot project in comparison to complaints in the regulatory process, and other updated pilot project evaluation data relevant to assessing whether it is meeting its objectives;
      • Explain the methodologies and format for quarterly evaluation reports;
      • Specify who in addition to the EEOC Office of Federal Operations staff, if anyone, will receive the quarterly reports; and
      • Prepare and send quarterly reports to federalsectoreeo@eeoc.gov with "Quarterly Pilot Report" in the subject line.
   3. Explain how the project's success will be evaluated at the conclusion of the pilot
      • Prepare and submit a final report to federalsectoreeo@eeoc.gov within 90 days of the pilot project's conclusion;
      • Identify the criteria that will be used to determine the pilot project's overall success (such as, the amount or type of change required to show the pilot project is successful);
      • Explain how the agency will isolate the effects of the pilot project to compare it against the standard 29 C.F.R. 1614 EEO process;
      • Provide a data analysis plan for the pilot project; and
      • Explain how the agency will obtain and measure customer/stakeholder feedback.

IV. FAQs for Agency Variance Requests to Perform Pilot Projects

Q1.      How does an agency submit a request to establish a variance/pilot project?

A1.      Agencies should submit requests, including all applicable documents, electronically to federalsectoreeo@eeoc.gov .  Ensure "Pilot Request" is in the subject line of the email.

Q2.      When should an agency submit a request to establish a variance/pilot project?

A2.      The agency must submit its request between March 31 and April 15.  For variance requests in Fiscal Year 2016 only, the submission period is extended to April 29.

Q3.      When will the pilot project begin after it is approved by the Commission?

A3.      Pilot projects must begin on the first day of the fiscal year following approval of the variance.

Q4.      Can an agency submit a general request to establish a variance/pilot project and supplement the request with additional details at a later date?

A4.      No.  The written request must identify the specific section(s) of 29 C.F.R. Part 1614 from which the agency wishes to deviate and provide a detailed explanation of what the agency will do instead.  See Part III of the Tool Kit for all the required information.

Q5.      Is there a minimum or maximum duration for a variance/pilot project?

A5.      Requests should propose a start and end date for the pilot project.  The EEOC has discretion in how long to grant a variance request; it will not initially grant any requests longer than 24 months, but it may extend the pilot for an additional year upon request if good cause is shown.  The EEOC's goal in determining the duration of a pilot project is to allow a reasonable amount of time for agencies to complete the processing of complaints filed under the pilot.

Q6.      Can an agency require complainants to participate in a pilot project?

A6.      No.  Participants must knowingly and voluntarily opt in to the pilot project.

Q7.      Can an agency establish a pilot project for specific, individual cases?

A7.      No.  A pilot project must address a broader application of the EEO complaint process.

Q8.      What specific information should the agency include in its request to establish a pilot project?

A8.      See Part III of the Tool Kit, above, for the required information.  Generally speaking, the agency should clearly identify how the pilot project will differ from the regulatory process, pinpoint the effect the agency believes it will have on complaint processing, define the duration and stages in the pilot project, and explain how the project will progress from start to finish.  The agency also should provide POCs for the pilot, evaluation, and data collection; set forth clear objectives for the pilot project; and explain how the objectives will be measured.  A pilot project request additionally should contain a detailed explanation of the method that will be used to evaluate the pilot project's success on a quarterly basis and at its conclusion, including the criteria that will be used to determine the pilot project's overall success, a data analysis plan, and ways to obtain and measure customer feedback.

Q9.      What safeguards must the agency include in its request to establish a pilot project?

A9.      See Part III.D of the Tool Kit above.  The agency must certify that the goals of the pilot project are consistent with the Commission's statutory mandate to prevent, remediate, and eradicate employment discrimination.  To that extent, the agency must ensure that employees and applicants participating in the pilot are not disadvantaged relative to individuals in the traditional EEO complaint process, and that their rights under the EEO laws are protected.  Additionally, the agency will ensure fairness and neutrality of the EEO process and submit information demonstrating the agency's current status of operating within regulatory guidelines for complaint processing.  The agency also should outline what training it will provide to EEO staff, how it will provide notice to employees and applicants about the pilot, and ensure that all stakeholders understand the pilot is voluntary.

Q10.    Does the agency need to identify which employees are eligible to participate in the pilot project?

A10.    Yes.  The agency must provide specific information regarding which components, facilities and/or positions will be eligible to participate in the pilot projects, as well as the reasons for its choice(s).

Q11.    Are there any reporting requirements during the pilot project?

A11.    Agencies must submit quarterly reports to the Office of Federal Operations with information on the total complainants opting into the pilot project, the average age of complaints in the pilot project, and updated pilot project evaluation data.  See EEOC Management Directive 110, Chapter 1, Section X.A.10 (August 5, 2015).  Specific criteria for reporting will be based on the pilot project itself and provided by EEOC with any pilot project approval.

Q12.    What should be considered when evaluating a pilot project while it is ongoing?

A12.    The agency should identify well-defined, clear, and measurable objectives and their connection to EEO program objectives.  The agency should also explain how it will isolate the effects of the pilot program and control for factors outside of the program such as the types of complaints filed and individual complainants, as well as how data will be collected for evaluation purposes.  The agency also should establish detailed time frames and a schedule for evaluating performance.

Q13.    What information should be included in the data analysis plan?

A13.    A data analysis plan should spell out what data will be collected, including baseline data before the pilot project begins as well as data from the pilot itself.  The plan should explain how the data will be collected and analyzed, and identify who will be responsible for analyzing the data and who besides EEOC officials will have access to the analysis.  It should also describe how the data will be entered and stored, as well as the safeguards that will be in place to ensure the data is reliable, error free, and protects personally identifiable information (PII).

Q14.    What are the reporting requirements at the end of the pilot project?

A14.    Agencies administering pilot projects must submit a final evaluation report at the conclusion of the pilot project.  The report must provide a detailed evaluation of the pilot project and be submitted to the Commission within 90 calendar days of the pilot project's conclusion.

Q15.   May a sub-component request a variance/pilot project separate from the parent agency?

A15.    Yes.  If the sub-component has total responsibility for the part of the 1614 process it is requesting a variance from and the parent agency does not object, then a sub-component may request a pilot project separate from the parent agency.

Q16.    How should the agency notify employees and applicants of the pilot project?

A16.    The agency should use reasonable means to ensure that eligible employees and applicants are aware of the pilot project.  This can take many forms, but must inform employees that the pilot is voluntary.

Q17.    How will the Commission approve pilot project requests?

A17.    The Office of Federal Operations will review the Agency's request, including documentation submitted in support thereof, and prepare recommendations for the Commission.  The Commission ultimately must vote to approve the variance and pilot project before the agency may begin the pilot project.

Q18.    What are some ways that the agency can obtain feedback from both participants in the pilot program as well as those using the current 1614 process?

A18.    The agency should develop an effective way to obtain feedback from those who participate in the pilot project as well as those going through the 1614 process.  For example, the agency might use an electronic survey, or exit interviews.

Q.19.   If the agency has a collective bargaining agreement, should it consult with the union when drafting its pilot proposal?

A.19.   Yes.  The agency should ensure that any potential conflicts with the collective bargaining agreement are resolved prior to submitting its pilot project request to the Commission.

Q.20.   Will EEOC respond to agency questions or provide additional assistance to agencies drafting pilot project requests?

A.20.   Yes.  The agency can submit questions to the Commission by email at federalsectoreeo@eeoc.gov, using "Pilot Assistance" in the subject line of the email.  The agency should include point of contact information, including the appropriate agency employee(s), their title(s) or position(s), their telephone number(s) and email address(es).  The Commission will respond by email, phone or schedule an in-person meeting to assist the agency in resolving the question.

[1]  U.S. Gov't Accountability Office, GAO-09-712, Equal Employment Opportunity:  Pilot Projects Could help Test Solutions to Long-standing Concerns with the EEO Complaint Process, at 36 (2009).

[2]  Id., at 36.

[3]  Id., at 36-37.

[4]  Federal Sector Equal Employment Opportunity, 77 Fed. Reg. 43,498, 43,500 (July 25, 2012).