John C. Fox and Candee ChambersThe OFCCP Week in Review (WIR) is a simple, fast and direct summary of relevant happenings in the OFCCP regulatory environment, authored by experts John C. Fox and Candee Chambers. In today’s WIR, we cover:

  • Contractor Paid Sick Leave Rule
  • House Dems’ fight bill to exempt defense contractors from Fair Pay Executive Order
  • OFCCP and attorney-work product privilege

Monday, July 25, 2016: Contractor Paid Sick Leave Rule Sent for White House Review.

Executive Order 13706, which directed the U.S. Department of Labor (DOL) to develop a Paid Sick Leave Rule, has now been sent to the Office of Management and Budget (OMB) for review. This is the last step before the Proposed Rule is implemented allowing enough time to meet President Obama’s September 30, 2016 deadline for final implementation.

This Rule, as proposed, would require federal contractors to provide employees with up to seven days of paid sick leave per year under any new contracts starting January 1, 2017, or any contracts altered, amended or extended, including those existing contracts renewed following bilateral negotiations in the following four categories:

  1. Procurement contracts for construction covered by the Davis-Bacon Act (DBA);
  2. Service contracts covered by the McNamara-O’Hara Service Contract Act (SCA);
  3. Concessions contracts, including any concessions contracts excluded from the SCA by the Department’s regulations at 29 CFR 4.133(b); and
  4. Contracts in connection with Federal property or lands and related to offering services for Federal employees, their dependents, or the general public.

As proposed, the Rule would allow employees (and even “Independent Contractors”) to use paid time to care for themselves or for family members and would provide for absences resulting from sexual assault, domestic violence or stalking.

Over 35,000 comments were received through two separate public comment periods. Read more about the NPRM in our February 29, 2016 WIR. The original comment period ended on March 28, 2016 and the second opportunity to submit comments ended on April 12, 2016.

While not all Government Contractors are covered by the Rule, it is expected to affect over 430,000 employees of federal contractors.

Tuesday, July 26, 2016: House Dems’ Now Fighting Bill To Exempt Defense Contractors from Fair Pay Executive Order.

U.S. House of Representatives’ Democrats have now joined their Senate colleagues attempting to remove language from amendments (also known as “riders”) to the House and Senate versions of the 2017 National Defense Authorization Act (NDAA…also known as the Department of Defense’s FY 2017 budget). Riders in both the Senate and House bills would exempt most defense contractors from the reach of President Obama’s highly controversial Fair Pay and Safe Workplaces Executive Order (“Fair Pay Order”). See our July 18, 2016 WIR re the Senate action. Last Monday, 80 House Democrats sent a letter to the House Armed Services Committee, as well as House and Senate Conferees, nearly identical in content to the letter Senate Democrats published two weeks ago. Specifically, the House letter seeks to eliminate restrictions the NDAA places on the applicability of the Fair Pay Order to defense contractors. Although Capitol Hill pundits had predicted the debate over the NDAA amendment could be resolved this summer, it now appears resolution is not likely until after the Presidential election.

Tuesday, July 26, 2016: A Texas Federal Court Provides a Sobering Reminder That What You Tell OFCCP Waives Your Attorney-Work Product Privilege.

Government Contractor L-3 Communications Integrated Systems LP provided OFCCP with information in response to a Complaint Peter Mir, a rejected engineering applicant, filed with OFCCP pursuant to Section 503 of the Rehabilitation Act. Thereafter, OFCCP dismissed Mr. Mir’s Complaint finding it lacked evidence of probable cause to believe that L-3 unlawfully discriminated against Mr. Mir based on his claimed disability when rejecting him for employment.

Mr. Mir then filed a Complaint in the Dallas federal District Court pursuant to the Americans with Disabilities Act and then filed a document request with L-3 seeking the company’s earlier Statement of Position to OFCCP in response to his OFCCP Complaint. L-3 resisted disclosure, but the Court ordered the company to produce its OFCCP Statement of Position and related documents the company had previously tendered to OFCCP. Specifically, the Court held that L-3 had waived its attorney work product privilege in so doing. Mir v. L-3 Communications Integrated Systems LP , 2016 BL 235727, N.D. Tex., No. 15-2766 (7/22/16).


Reminder: If you have specific OFCCP compliance questions and/or concerns or wish to offer suggestions about future topics for the OFCCP Week In Review, please contact your membership representative at 866-268-6206 (for DirectEmployers Association Members), or email Candee at with your ideas.

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John C. Fox
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