Employer Law Report

Tag Archives: OFCCP

Trump administration’s 2018 budget proposes a merger of the EEOC and the OFCCP, prompting concerns over whether the two agencies can effectively operate as one

The Trump administration’s proposed fiscal year 2018 budget includes a merger of the Office of Federal Contract Compliance Programs (OFCCP) and the Equal Employment Opportunity Commission (EEOC). If the budget is approved, the OFCCP, which has jurisdiction over federal contractors, would merge into the EEOC, which has jurisdiction over private and public employers; forming a combined super equal employment opportunity enforcement agency.

Background of the two agencies

The OFCCP enforces Executive Order 11246, the Vietnam Era Veterans Readjustment Assistance Act (VEVRAA), and Section 503 of the Rehabilitation Act (Section 503), which together prohibit workplace discrimination, harassment and retaliation on the …

DOL releases final rules on paid sick leave for federal contractors

A special thanks to Adam Bennett for his work on this article.

The U.S. Department of Labor recently released its final rule requiring federal contractors and subcontractors to provide their employees with at least seven days of paid sick leave each year. The final rules were published on Friday, Sept. 30 and will go into effect 60 days after publication (Nov. 29, 2016). Despite the “effective date,” the sick leave rule will only apply to federal contractors and subcontractors entering into new contracts where the solicitation was issued or the federal contract was awarded on or after Jan. 1, 2017.…

OFCCP publishes final rules on sex discrimination for federal contractors

As we reported last year, the Office of Federal Contract Compliance Programs (OFCCP) planned to issue a Final Rule updating its sex discrimination regulations for federal contractors and subcontractors for the first time since the 1970s. In doing so, sex discrimination prohibitions for federal contractors have been modernized to include discrimination on the bases of sex, pregnancy, childbirth, pregnancy-related medical conditions, gender identity, transgender status and sex stereotyping. Notably, sexual orientation was excluded from the definition.

The Final Rule amends regulations implementing Executive Order 11246, which prohibits discrimination by federal contractors on sever bases, including sex. The Final Rule …

OFCCP’s final compensation reporting rule expected in May

OFCCP has said that it will issue final rules in May 2016 requiring federal contractors and subcontractors to submit electronic pay data.  This rule has been highly controversial since it was first proposed in 2011.  Currently there is no obligation for contractors to submit pay data to OFCCP except in the course of an affirmative action compliance review.  The proposed rule would require contractors with 100 or more employees and federal contracts or subcontracts totaling $50,000 or more to submit summary compensation data by race, ethnicity, and sex annually.  The  data would then be aggregated by industry groups and published …

OFCCP posts sample affirmative action plans for individuals with disabilities and veterans

The Office of Federal Contract Compliance Programs (OFCCP) recently posted sample affirmative action plans (AAPs) for individuals with disabilities and veterans to its website, available here.

The forms should be helpful guidance for companies who are federal contractors and subcontractors who are looking to comply with new regulations that took effect on March 24, 2014 but are only now being integrated into AAPs that were already in existence on the regulations’ effective date. Many contractors and subcontractors are incorporating or incorporated these regulatory changes into their annual AAPs in 2015 for the first time.

The samples are designed to …

Reminder to federal contractors and subcontractors: April 8th effective date for expanded discrimination protections

In December, 2014, Jamie LaPlante wrote here about expanded obligations under the affirmative action laws that cover federal contractors and subcontractors. Among the changes she mentioned was the April 8th effective date for the inclusion of sexual orientation and gender identity among the classes protected under affirmative action laws. The expanded protections apply to all federal contractors and subcontractors who enter into new contracts or modify existing contracts on or after April 8th.

Under the expanded protections, discrimination against applicants or employees based on sexual orientation or gender identity is prohibited. Sexual orientation and gender identity now …

Covered affirmative action employers — more scary news from the OFCCP

On August 6, 2014, the Office of Federal Contract Compliance Programs (OFCCP) announced a proposed rule that should be of real concern to covered affirmative action federal contractors. The OFCCP is the agency that enforces federal affirmative action laws. If the proposed rule is adopted, it will add compensation data to the information that covered employers must submit with their annual EEO-1 reports. Keep in mind the “web” of coverage under affirmative action laws reaches far. Coverage is triggered not just by direct federal contracts but also by contracts to provide goods or services to any private sector entity, as …

Secretary of Labor announces proposed rules for minimum wage for federal contractors

The Secretary of Labor announced proposed regulations raising the minimum wage for workers on federal contracts to $10.10 per hour. This new requirement applies to: (1) construction contracts covered by the Davis-Bacon Act (but not those covered only by the Davis-Bacon Related Acts); (2) procurement and nonprocurement contracts exceeding $2,500 covered by the Service Contract Act; (3) concession contracts with the federal government; and (4) contracts to provide services to federal employees, their dependents, or the general public on federal property. These proposed regulations implement Executive Order 13658, which we reported on previously. Interested parties can submit written comments …

Updates for Federal Contractors: New Minimum Wage Coming Soon; New Required Form for Self-Identification of Disability Published by OFCCP.

Those of you who watched President Obama’s State of the Union Address know he announced that he will establish by Executive Order a minimum wage of $10.10 for all federal contractors and subcontractors. A proposal backed by the White House is currently pending in Congress to raise the federal minimum wage for all employers from $7.25 to $10.10.  There is strong opposition to the proposed law. The President’s anticipated Executive Order does not need Congressional approval because it will not impact all employers, just those who have federal contracts or subcontracts. Until a draft Executive Order is proposed, we will …

Federal Contractor Update: Contractors Must Begin Using New Census Data Next Year

The Office of Federal Contract Compliance Programs (OFCCP) recently released a notice that the 2006-2010 census data must be used for all affirmative action plans for plan years beginning on January 1, 2014, and OFCCP will begin using 2006-2010 census data to evaluate affirmative action plans and efforts as of that same date. Keep in mind that, since the data was released in late November 2012, federal contractors were permitted to voluntarily begin using the census data, which is based on a compilation of 2006-2010 American Community Survey (ACS) data. Contractors should keep in mind that the data is coded …

OFCCP Enforcement and Regulatory Agenda Heightened for Fiscal Year 2013

Federal contractors and subcontractors should take notice that, in the last couple of years, the Office of Federal Contract Compliance Programs (OFCCP) has been pursuing a much more aggressive enforcement and regulatory agenda. Final revised rules on disability and veterans affirmative action are expected soon. Later in 2013, proposed new rules for construction contractors and gender discrimination are expected. We will post to this blog when these are available.

As we are awaiting these new regulatory frameworks, it should be noted that OFCCP has also been conducting more in depth and more aggressive compliance evaluations of federal contractors and subcontractors. …

OFCCP Signals Formal Change of Course on Pay Discrimination

 On February 28, 2013, the Office of Federal Contract Compliance Programs (OFCCP) rescinded two Bush-era enforcement guidance documents on pay discrimination from 2006—the “Compensation Standards” and “Voluntary Guidelines.” This is consistent with OFCCP’s stated focus on pay discrimination since the beginning of the Obama administration.

OFCCP’s Director, Patricia Shiu, issued a press release and authored a blog article, stating that OFCCP intended to align its analysis of pay discrimination with the principles used to enforce Title VII. She stated that OFCCP intended to no longer limit its pay discrimination focus to equal pay in the same job but to expand …

Act Eliminates OFCCP Jurisdiction and Affirmative Action Requirements Based on TRICARE Program

Employers in the healthcare industry may find that they no longer have affirmative action obligations as of 2012 as a result of the National Defense Authorization Act, signed into law on December 31, 2011.

TRICARE is the Department of Defense healthcare program for active duty and retired military personnel and their families. Prior to the National Defense Authorization Act, the Office of Federal Contract Compliance Programs (OFCCP) took the position that hospitals, pharmacies, and other healthcare providers providing care under TRICARE contracts had affirmative action obligations as “subcontractors” pursuant to Executive Order 11246, Section 503 of the Rehabilitation Act, and …

For Many, “It’s That Time of Year”: Affirmative Action Plan (AAP) Revision

Many federal contractors and subcontractors use a calendar year for their written affirmative action plans (AAP’s). That means their AAP’s are typically being reviewed and revised shortly after January 1. Working with companies over the years to help them develop and revise AAP’s and advising companies during OFCCP audits, we have come to appreciate the challenges for contractors in the process. Here are a few tips to keep in mind as you revise your AAP’s:

  1. It’s Not Just "Boilerplate"

Too often, contractors revising AAP’s simply "run the numbers" for the required statistical analysis and then put the plan back on …

OFCCP Proposes Numerical Goals for Employment of Persons with Disabilities

The U.S. Department of Labor Office of Federal Contracts Compliance Programs (OFCCP) has proposed a new rule requiring federal contractors and subcontractors to set a goal to have 7% of their workforce be individuals with disabilities. Presently, federal contractors and subcontractors are only required to set percentage numerical goals for areas of their workforces where women and minorities are found to be underrepresented based on an "Availability Analysis" conducted under OFCCP regulations. The 7% goal for persons with disabilities proposed by OFCCP would apply to each job group in the contractor’s workforce. It is not based on any calculation by …

OFCCP Director Shiu Outlines Agency Objectives

Speaking on July 27 to the Industry Liaison Group’s 29th Annual National Conference to an audience of human resources professionals for the nation’s top companies, the Office of Contract Compliance Director Patricia Shiu emphasized the OFCCP’s top initiatives. She stated that the OFCCP will focus on pay equity and compensation discrimination and affirmative action for military veterans and persons with disabilities. The OFCCP issued proposed rule-making establishing “benchmarks” for recruiting and hiring of veterans in April 2011 and is presently evaluating the comments it received. Shiu characterized those as benchmarks rather than quotas or ceilings.…

OFCCP Proposes New Affirmative-Action Rules for Veterans

On April 25, 2011, the Department of Labor’s Office of Federal Contract Compliance Programs announced a proposed rule to increase the affirmative action obligations federal contractors and subcontractors owe to veterans. It was published in the Federal Register on April 26 to allow for a 60-day comment period and will likely generate significant discussion among both contractor and veterans groups.

Some of the changes simply clean up regulatory language which is no longer accurate and others clarify existing obligations. The most controversial changes, however, add some rather significant data collection, monitoring, recruitment and hiring obligations. As the DOL’s news release …

OFCCP Releases New Directive and Signals It Will Conduct More In-Depth Compliance Evaluations

The OFCCP has released a new directive – the Active Case Enforcement Directive (ACE)  – to replace the Active Case Management directive (ACM) which was rescinded by OFCCP in December 2010. The ACE procedures will result in more in-depth OFCCP audits and will greatly increase the chances of OFCCP making findings that are adverse to the companies they audit.

Under the ACE Directive, the OFCCP will conduct full desk audits of every contractor selected for a compliance evaluation. This is in contrast to the previous ACM procedure that required full desk audits only for every 25th contractor audited or for …

OFCCP Signals Desk Audit Reviews Will be More Involved and Onsite Reviews May Be More Frequent

The Office of Contract Compliance (OFCCP), which enforces federal contractors’ and subcontractors’ affirmative action obligations, recently rescinded its 2003 ACM directive. The 2003 ACM or "Active Case Management" directive allowed for abbreviated desk audits where only the affirmative action plan and personnel data were reviewed. If no evidence of systemic discrimination was revealed (defined as discrimination affecting at least 10 employees or applicants), the evaluation would be closed. If such evidence was indicated, a full desk audit and possible onsite review would be launched. The ACM also mandated that a full desk audit be performed for every 25 contractors and a full onsite review …

Required Posting For Federal Contractors And Subcontractors – Union Organizing

If your company has federal contracts or subcontracts, you should be preparing to comply with Executive Order 13496 by June 21, 2010. The Executive Order, which was signed by President Obama in January, 2009, requires that all companies with federal contracts or subcontracts post a detailed notice to employees informing them of their rights to engage in union organizing. The notice must be posted in “conspicuous places in and about the company’s plants and offices so that it is prominent and readily seen by employees.” “Conspicuous placement” includes, but is not limited to, areas in which the employer posts other …

LexBlog