OFCCP Week In Review: August 22, 2022

The DE 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, Candee Chambers and Cynthia L. Hackerott. In today’s edition, they discuss:

• Citing an Anticipated Increase In IRS Jobs, Senator Rick Scott Wrote An Astonishing Open Letter Discouraging Job Seekers From Applying
• FAR Council Proposed A Rule Mandating Unions (“PLAs”) On Large Federal Construction Projects
• USDHS ICE Issued A Proposal to Later (Perhaps?) Create Proposed Permanent Remote Form I-9 Documentation Procedures
• USDOL Women’s Bureau Webinar Presented Soft HR Advice to Motivate Discussion Around Pay Equity Issues
• Title VII Will Stop OFCCP “Cold in Its Tracks” From Releasing EEO-1 Component 2 Pay and Hours Worked Data: The “Abandoned Baby on The Porch” Legal Problem
• OFCCP Walks Back Its Earlier “Pay Equity” Directive but Now Tries to Impose An “Analysis of Compensation” on Federal Contractors Without Rulemaking
• Federal Judge Cites First Amendment to Enjoin Florida’s New Law Barring Employers from Teaching Critical Race Theory
• White House Memo Accentuated Importance of Federal Zero Trust Security and IT Modernization Goals
• USDOL Created the “ApprenticeshipUSA” Brand and Announced the Start of An Online Dialogue
• USDOL WHD Reminded Stakeholders About Upcoming, Free Live Q&A Sessions on Prevailing Wage Compliance
• DOL Revealed Joint Message by Nine Federal Agencies to State & Local Governments on Competitive Integrated Employment for Workers with Disabilities
• Looking Ahead

Tuesday, August 16, 2022: Citing an Anticipated Increase In IRS Jobs, Senator Rick Scott Wrote An Astonishing Open Letter Discouraging Job Seekers From Applying

Following the lead of the Republican National Committee and others, Senator Rick Scott (R-FL) took an unorthodox approach to express his displeasure over the passage of the Inflation Reduction Act. In an open letter to the “American Job Seeker,” Senator Scott made several astonishing and inflammatory allegations about an IRS job posting. Although dated the same day President Biden signed the Inflation Reduction Act of 2022 into law, the Senator’s letter does not reference that statute by name. He did, however, point out that the law provides $80 billion in added funding to the Internal Revenue Service (IRS). This funding would allow the IRS to hire 87,000 new agents and make the IRS “larger than Pentagon, Federal Bureau of Investigation, Customs and Border Protection[,] and the State Department combined,” according to Senator Scott. However, the Senator’s claims were largely debunked by Treasury Department spokespeople.

The Senator urged potential job seekers to “consider the following factors before submitting your application to the IRS:

1. These new positions at the IRS will not offer you the long-term job stability you may expect from a position with the federal government. Put another way: this will be a short-term gig. Republicans will take over the House and Senate in January, and I can promise you that we will immediately do everything in our power to defund this insane and unwarranted expansion of government into the lives of the American people.
2. It is important to understand that in the initial IRS job posting for these positions, which the agency has now taken down, the IRS made it very clear that one of the “major duties” of these new positions is to “be willing to use deadly force.” We aren’t talking about joining your local police force, or even the U.S. military – this is the federal agency charged with collecting taxes. The IRS is making it truly clear that you not only need to be ready to audit and investigate your fellow hardworking Americans, your neighbors and friends, you need to be ready and, to use the IRS’s words, willing, to kill them” (emphasis in the original).

In a press release touting his letter, Senator Scott reproduced an IRS online job ad that states the position posted would require the use of a firearm and willingness to use deadly force if necessary.

Agency officials and experts debunked the Senator’s claims

However, in a story debunking similar assertions, the AP cited various social media posts that “falsely depicted a legitimate job ad for a special agent with IRS Criminal Investigation — the agency’s law enforcement division — as a generic ad for all new positions.” The AP story is dated the day prior to Senator Scott’s letter, but it addresses claims similar to those in the Senator’s missive. The job description cited does not apply to most potential new employees that the IRS will hire in the coming years, and the vast majority of IRS workers are not armed, the AP article pointed out, citing several officials and experts.

Special agents with the IRS Criminal Investigation Division, who investigate criminal tax violations and other related financial crimes, are the only IRS employees who carry firearms, Anny Pachner, a spokesperson for the Division told the AP. “In reality, only a small fraction of IRS employees – about 2,100 special agents in IRS Criminal Investigation – carry firearms,” Justin Cole, another spokesperson for the Division explained to the AP and Newsweek. “This is consistent with other federal law enforcement agencies.”

Currently, the IRS has roughly 80,000 total employees, the AP noted, adding that the Division dates back to 1919 and has always employed armed agents. The agency is currently hiring 300 special agents, according to the online job posting, the AP reported.

The assertion that the IRS is going to hire 87,000 new agents overall due to the new law is also misleading, the AP said, citing its previous report. “The figure comes from a prior Treasury Department proposal to hire roughly that many IRS employees over the next decade, but there is no explicit mandate for such a workforce in the act,” the AP explained. The news agency added, “the IRS will finalize its hiring plans in the coming months, according to Treasury officials. Many new IRS hires will replace employees who are expected to retire or quit, and not all of them will be auditors.”

Janet Holtzblatt, a senior fellow at the Tax Policy Center and former Treasury official, told the AP that the nearly $80 billion for the IRS in the bill will also pay for other improvements, such as revamping the agency’s technology. The Treasury Department says it will hire experienced auditors and workers who will improve taxpayer services, and that audit rates for those earning less than $400,000 are not expected to rise in relation to historic norms, the AP reported.

Thursday, August 18, 2022: FAR Council Proposed A Rule Mandating Unions (“PLAs”) On Large Federal Construction Projects

Observing that existing instructions to federal procurement agencies to encourage the use of unionized workforces on larger construction projects had failed to cause federal construction contractors to place unionized workforces in any great number on even the larger federal construction projects, the FAR Council has now proposed a new Rule to mandate unionized construction workforces on federal construction contracts of $35 million, or more. The proposed Rule would require federal Government contractors and subcontractors on “large-scale” federal construction projects (meaning $35 million and above) to negotiate a “Project Labor Agreement” (“PLA”) with one or more appropriate labor organizations (i.e., unions) or, to become a party to an existing PLA.

The FAR Council’s proposal implements one of the instructions in President Biden’s Executive Order (EO) 14063. The new union mandate would be subject to three exemptions, discussed below. Agencies would also still have the discretion to require PLAs on smaller federal construction projects that do not meet the $35 million threshold. The Notice points out that EO 14063 (Section 6) also directs the Office of Management and Budget (OMB) to issue implementation guidance to agencies on exceptions and reporting. Contractors will thus have to keep a careful watch for OMB’s eventual “guidance” with the constant worry that The White House will use this informal “guidance,” not subject to the public Notice and Comment procedural requirements of the Administrative Procedure Act, to stretch, to grow and to change the already draconian regulatory requirements. This is particularly of concern as to the Biden White House which continues to view federal contractors and their employees as merely extensions of the federal employee workforce over which the President has plenary control under the U.S. Constitution as the chief executive officer of the Executive Branch of the federal government.

Comments are due on or before October 18, 2022. Stakeholders should submit comments via the Federal eRulemaking portal at https://www.regulations.gov, by searching for “FAR Case 2022-003.”

President Biden issued Executive Order (EO) 14063 – “Use of Project Labor Agreements For Federal Construction Projects” (87 FR 7363) – on February 4, 2022. We discussed this EO and its background in an earlier story – “Biden Issued an Executive Order Unionizing All Large Construction Contracts.”

The FAR Council agencies are the Department of Defense, the Government Services Administration, and the National Aeronautical and Space Administration. They are the federal agencies most heavily involved in entering into contracts to procure goods and services for the federal Government. These agencies issue and revise the Federal Acquisition Regulation (FAR), the principal set of rules in the Federal Acquisition Regulations System, which governs the acquisition process through which the federal Government purchases goods and services.

The current FAR is based on the final Obama-era Rule the FAR Council published on April 13, 2010 (75 FR 19168). That final Rule implemented President Obama’s EO 13502, which only encouraged the use of PLAs for large-scale federal construction projects valued at $25 million or more. EO 14063 will revoke EO 13502 and its implementing Rules when EO 14063’s implementing Rules become legally effective, if they do. (For example, if the U.S. Senate and U.S. House of Representatives both revert to Republican control in January 2023 following the November 2022 mid-term elections, the Republican Congress could block any such new Rules, and undoubtedly would do so).

Definition of “construction” work also broadened: The proposal would also expand the definition of “construction” to mean, “construction, reconstruction, rehabilitation, modernization, alteration, conversion, extension, repair, or improvement of buildings, structures, highways, or other real property.” In addition, it would raise the threshold for a large-scale construction project from $25 million to $35 million.

The proposed Rule would allow three exceptions

Under the proposed Rule, federal agencies would no longer have discretion as to when to require a unionized construction workforce. Rather, the federal procurement agencies would be required to use a PLA for $35M or more federal construction projects unless one or more of three exceptions apply, and the procuring agency were to grant an exception. Procedurally, a senior official, i.e., the senior procurement executive, would need to issue a written waiver from the requirement for the contract to contain a unionized workforce (see new proposed language at FAR 22.504(d)). The proposal suggests the senior procurement official should decide whether to grant an exception prior to the procuring agency’s issuance of a notice of intent to place an order.

EO 14063 (Section 5) and the proposed Rule allow procuring agencies to grant exceptions in any of the following circumstances:

1. Requiring a PLA would not achieve economy and efficiency in Federal procurement, as described in 22.504(d) based on the following factors:
   1. The project is of short duration and lacks operational complexity;
   2. The project will involve only one craft or trade;
   3. The project will involve specialized construction work that is available from only a limited number of contractors or subcontractors;
   4. The Agency’s need for the project is of such an unusual and compelling urgency that a project labor agreement would be impracticable; or
   5. The project implicates other similar factors deemed appropriate in regulations or guidance issued pursuant to section 8 of this order.
2. Requiring a PLA would substantially reduce the number of potential bidders so as to frustrate full and open competition, i.e., where adequate competition at a fair and reasonable price could not be achieved; or
3. Requiring a PLA would be inconsistent with statutes, regulations, other E.O.s., or Presidential Memoranda.

The White House Reported That Merely Suggesting the Use of Unionized Workforces Was Insufficient to Boost Union Jobs

The Notice reported OMB data that in the 13 years between 2009 and 2021 there were a total of approximately 2,000 federal construction contracts eligible for PLA involvement, but only 12 included PLAs. The Notice further reported that there has been an annual average of 167 eligible federal construction contract awards but an annual average of only one award that has included a PLA. Because the exemptions would be a new factor, no data on their use are available. Nevertheless, the FAR Council estimated that exceptions may be granted for 10 percent to 50 percent of covered contracts, i.e., an estimated 60 to 107 construction contract awards may require PLAs were the proposed Rule to eventually become legally effective.

The FAR Council also estimated that the number of prime contractors that would be required to submit federal construction contract proposals including the proposed use of a unionized workforce to satisfy the demands of the contract would be 120-215 entities.

No data source identifies the number of subcontractors per contract, however, the FAR Council estimated that for each contract there is an average of two subcontractors. Therefore, the Council estimated the requirement for PLAs would apply to 240-430 subcontractors.

Thursday, August 18, 2022: USDHS ICE Issued A Proposal to Later (Perhaps?) Create Proposed Permanent Remote Form I-9 Documentation Procedures

The U.S. Department of Homeland Security’s Immigration and Customs Enforcement (DHS ICE) published a “Notice of proposed rulemaking (NPRM)” seeking to allow the Secretary of DHS discretion, if he chooses to exercise it, to later impose so-called “alternative procedures” for the remote submission of identification documents applicants must submit to prospective employers to allow the employer to complete the Form I-9, Employment Eligibility Verification.

This is a very unusual proposal in that it does not propose specific new Rules. It is thus in fact an “Advanced Notice of Proposed Rulemaking” masquerading as a NPRM. ANPRs are two regulatory steps away from being allowed to go to Final Rulemaking (the next step after an ANPR would be the NPRM, and the second step thereafter would be publication of a Final Rule). A NPRM, which this proposal purports to be, is only one-regulatory step away from being allowed to become legally effective (the next step being the publication, of course, of a Final Rule).

This proposed Rule merely discusses some of the current thinking at DHS and alternatives and options it is still considering. The proposed Rule does NOT propose alternative actions which state the circumstances which would cause which alternative to apply (an approach the agency may take). Rather, this Proposed Rule poses possible alternative procedures, like speaking musings out loud, and then proposes to leave the precise procedures and details to the discretion of the DHS Secretary to flesh out and publish, informally via some form of written “Guidance” or “Notice,” at some unstated later time. Here is how the NPRM begins:

“DHS is proposing to allow for alternative procedures for documents required by the Form I-9, Employment Eligibility Verification. This proposed rule would create a framework [yellow highlighting added] under which the Secretary of Homeland Security (the Secretary) could [yellow highlighting added] authorize alternative options for document examination procedures with respect to some or all employers. Such procedures could [yellow high-lighting added] be implemented as part of a pilot program, or upon the Secretary’s determination [yellow highlighting added] that such procedures offer an equivalent level of security, or as a temporary measure to address a public health emergency declared by the Secretary of Health and Human Services pursuant to Section 319 of the Public Health Service Act, or a national emergency declared by the President pursuant to Sections 201 and 301 of the National Emergencies Act.” [Federal Register p. 50786]

It is not at all legally clear that this “proposal to have a proposal” meets the public “Notice and Comment” requirements of the Administrative Procedure Act (“APA”). The APA, rather, requires federal agencies to publish for public Notice and Comment fulsome, complete, and specific proposals the agency would like to initiate with the benefit of public comment on those specific and concrete proposals for agency action. There is not an option under the APA for a Notice of Proposed Rulemaking (NPRM) to simply allow for a grant of unfettered discretion to the federal agency; otherwise, the public does not know what the specific proposal is, how the discretion would be deployed and how to comment.

It may well be that this badly framed and poorly drafted proposal anticipates a future NPRM to follow upon this NPRM (curing DHS’s APA problem which would ensue if it tried to turn this NPRM directly into a Final Rule). However, the proposal is entirely unclear on that point. After discussing several alternative procedures (plural) the Secretary may or may not adopt, the proposal then only fleetingly and narrowly states that:

“DHS plans to introduce any such alternative procedure in a future Federal Register notice.” [Federal Register p. 50790].

So, this sentence is twice unclear: first as to whether the pledge to publish any “such alternative procedure” (singular) refers to the last of the several alternative procedures the prior paragraph had just discussed, or whether the author of the sentence meant to refer to all of the several procedures (plural) the proposal had just discussed as being subject to a forthcoming Federal Register “notice.”  Moreover, the pledge to publish “any such alternative procedure” leaves it unclear whether the future promised Federal Register “notice” will be in the form of a Notice of Proposed Rulemaking once the Secretary has settled his thoughts on which alternatives he wishes to adopt, and how and when, or whether the coming promised “notice” will simply state how the Secretary has finally “landed the plane” on his decision making after reading your comments. The use of the term “notice,” however, is ominous in this context, though, since that is a formal APA communication document which does NOT invite comment. Rather, a “Notice” merely communicates information, informally, with the public.

The DHS ICE NPRM goes on to cast its proposal as a search for alternative possible procedures in the way of an open “BlueSky” brainstorming session:

“To allow DHS to evaluate and implement options [yellow highlighting added] that provide employers with more flexibilities, and in recognition of many employees’ changing work environments and advances in technology, DHS proposes to revise the language currently in 8 CFR 274a.2(b) and (c). This proposed revision includes additional language in paragraphs (b)(1)(ii)(A), (b)(1)(vii), and (c)(1)(ii) stating that an alternative procedure may be authorized [yellow highlighting added] by the Secretary for examining the documentation presented by individuals to establish identity ^[19] and/or employment authorization when completing Form I-9 when they are hired, reverified, or rehired. Moreover, a new paragraph (b)(1)(ix) would be added to state that, in lieu of the physical examination procedure described in paragraphs (b)(1)(ii)(A), (b)(1)(vii), and (c)(1)(ii), the Secretary may authorize [yellow high-lighting added] optional alternative documentation examination procedures with respect to some or all employers, and that such procedures may be adopted [yellow highlighting added] as part of a pilot program, upon the Secretary’s determination [yellow highlighting added] that such procedures offer an equivalent level of security, or as a temporary measure to address a public health emergency declared by the Secretary of Health and Human Services or a national emergency declared by the President.” [Federal Register pp.50789-50790]

*          *          *          *          *

And finally: DHS’ confession that it is not proposing anything in this proposal, but rather is just thinking out loud:

“The proposed rule would not itself implement an alternative procedure to physical examination.” [Federal Register p.50790]

Other related, proposed changes include retention requirements, fraud detection, anti-bias training, and possible limitations

On top of the above-described provisions, DHS is considering making the following changes to this information collection:

1. “Changes to various document retention requirements. These changes may include [yellow highlighting added] DHS imposing some or all of the document retention requirements applicable to the remote examination process during the flexibilities period discussed above, which required employers to retain copies of the documentation employees chose to present. The Department is also considering [yellow highlighting added] requiring employers to retain copies of any documents presented remotely via video, fax, or email.
2. Adding a fraudulent document detection and/or an anti-discrimination training requirement for employers. For example, the employer or authorized representative who uses the alternative procedure may be required to take a 30-60-minute online training on detecting fraudulent documents remotely and avoiding discrimination in the process.
3. A variety of options [yellow highlighting added] concerning the population that will be eligible to use the alternative procedure(s). The DHS is requesting comments on such options and on how they may affect the collection of information. One potential option for consideration might be to limit the eligible population to those employers who have enrolled and are participants in good standing, in E-Verify. Another potential option [yellow highlighting added] might be [yellow highlighting added] to place some limits on employers who have been the subject of a fine, settlement, or conviction related to employment eligibility verification practices.”

Astoundingly, the only reference to required “anti-discrimination training” appears not in the proposal section, but in the “cost impacts section of the DHS ICE proposal” where only a fleeting bald reference appears with no details about what such training may require, its scope, duration or content:

“If employers choose to delegate this work to contractors [meaning remote documentation of the identification of documents needed to complete the Form I-9], they will also face additional contracting costs. Furthermore, if [yellow highlighting added] DHS authorizes alternative procedures on the condition that participating employers engage in particular activities, such as [yellow highlighting added] enrolling in E-Verify, collecting and retaining images of Form I-9 documents presented by employees, or completing related fraudulent document detection and/or anti-discrimination training [bold emphasis added], these conditions may entail costs and benefits as well.” [Federal Register p.50791] 

“BlueSky” Decision Making Tools Are Available to the Federal Agencies

The APA is not a vehicle to ask the public to comment upon still unfolding policy musings or thus far half-baked policy and enforcement ideas. The APA does provide federal agencies an opportunity, however, through a vehicle different from an NPRM, to seek ideas to help regulators crystalize inchoate ideas and announce to the public: “Hey, we are thinking about some things up here, and would like your thoughts and input to help us finalize our thinking and fashion a NPRM. We are BlueSkying this thing, so we are sending up this flare to ask you to just please help us by sharing your experiences and observations with us before we sit down to draft something for your review.”

That BlueSky decision making tool is an “Advance Notice of Proposed Rulemaking (“ANPR”) which is a tool to allow a federal agency to obtain information from the public before it is ready to issue a Notice of Proposed Rulemaking. ANPRs are particularly useful regulatory tools, in my experience, when either technical issues present themselves before the federal agency or the issues are contentious and emotionally charged (suggesting the wisdom of some public venting to answer the felt need of many Americans to “be heard” and to demonstrate to all interest groups that there are more points of view than just theirs).

Another alternative tool available to federal agencies to help them get a grip on what policy and procedure paths they want to go down is one the Obama Administration innovated and implemented widely to informally connect with the public and to help federal agencies gather and crystalize their thoughts. The Obama Administration called them “Town Halls” or “Listening Sessions.” Many federal agencies used them to meet with members of the public, often in their local communities, before the agency had completed the exercise of its discretion and before it had fashioned a mature Notice of Proposed Rulemaking ready for public consumption.

This unusual DHS ICE proposal, however, is entirely consistent with the Biden White House’s continuing discomfort that it has to comply with the Administrative Procedure Act. This continues to be surprising given the numerous legal setbacks federal Executive Agencies have suffered in the last year when the federal courts have found numerous agencies either to be entirely flouting the APA or shorting the full public Notice and Comment requirements the APA mandates.

The proposed DHS Rule states, as noted above in the quote of the opening paragraph of the NPRM, that it would create a “framework” [in other words a range of options: not a specific proposal for your review and comment] under which the Secretary of Homeland Security “could” [but maybe not] authorize alternative options for document examination procedures with respect to some or all employers, the Federal Register Notice explained. In light of the advances in technology and new work arrangements that occurred as a result of the COVID-19 pandemic, DHS is “exploring alternative options,” including making permanent some of its COVID-19 pandemic-related flexibilities.

Public Comments Deadline

Members of the public may submit formal written Comments by searching for “ICEB 2021-0010” in the Federal eRulemaking Portal at https://www.regulations.gov.” The deadline for comments is October 17, 2022.

Good luck commenting on proposals not made, not known, not described in any detail, and without a definitions section. Treat this NPRM for what it actually appears to be: a request for “BlueSky” ideas to help DHS ICE make a seamless conversion to remote documentation of the Form I-9. It is not a request for trial evidence as it was intended to be. That is what NPRM public comments are (information used to inform the federal agency’s decision making so it will make well-informed decisions and to thereafter serve as evidence to prove in the federal courts that the resulting Final Rule was not “arbitrary and capricious” given the public comments, and in accordance with law, if that is the result of the Final Rule).

How We Got Here

Due to remote work locations the COVID-19 pandemic health emergency induced, ICE announced in March 2020 that it would exercise its prosecutorial discretion to NOT require employers to comply with its “physical presence requirements” (for new hires) when a company was completing the I-9 Form and inspecting an applicant’s identity documents. The guidance applied only to employers operating remote workplaces. Under that guidance, an employer, or an authorized representative acting on the employer’s behalf, could inspect remotely (such as over video link, fax, or email) those identity documents applicants offered to satisfy the employers need to complete Form I-9 within three business days of the employee’s first day of employment. ICE instructed employers to enter COVID-19 as the reason for the physical examination delay in Section 2 “Additional Information” field, of the Form I-9. Under that guidance, employers were required, once normal onsite work operations resumed, to physically examine the original documents to confirm their authenticity and enter the notation “documents physically examined” along with the date of inspection in Section 2 “Additional Information” field.

The DHS initially had these provisions in place for a period of 60 days. ICE periodically extended them as the COVID-19 national health emergency continued. On March 31, 2021, ICE updated the March 20, 2020, announcement stating that, as of April 1, 2021, only those employees who physically reported to work at a company location on any regular, consistent, or predictable basis needed to undergo an in-person examination of their Form I-9 identity and employment eligibility documentation. The announcement further stated that employees who were hired on or after April 1, 2021, and who worked exclusively in a remote setting due to COVID-19-related precautions, were temporarily exempted from the physical examination of their Form I-9 documents until they undertook non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements was terminated, whichever occurred earlier. Subsequently, due to the ongoing COVID-19 pandemic, ICE extended these flexibilities several times: the latest announcement, issued on April 25, 2022, extended the temporary flexibilities until October 31, 2022. (For background see WIR, Friday, March 20, 2020: DHS Announced Flexibility in Form I-9 Compliance, Tuesday, August 18, 2020: ICE Relaxes Form I-9 “Physical Presence” Requirement to September 19, and Monday, October 25, 2021: Comment Now on the Remote Document Examination Process for the I-9 Form).

USCIS received 315 public comments to its October 26, 2021, Notice (86 FR 59183) which sought public input regarding document examination practices associated with the Form I-9, including alternative, remote practices. While the vast majority supported a remote document examination option, some expressed concerns over document fraud, the agency reported. ICE emphasized that the proposal “would not directly authorize remote document examination, but it would create a framework under which the DHS could pilot various options, respond to emergencies similar to the COVID-19 pandemic, or implement permanent flexibilities upon a specific determination as to the level of security, including, but not limited to, fraud risk.”

Thursday, August 18, 2022: USDOL Women’s Bureau Webinar Presented Soft HR Advice to Motivate Discussion Around Pay Equity Issues

Kelly Jenkins-Pultz, Regional Administrator for the USDOL’s Women’s Bureau Region 9 in San Francisco (covering Arizona, California, Guam, Hawaii, and Nevada) hosted a webinar on using pay equity assessments as a means to attract and retain quality employees. The approximately 90-minute webinar discussed embracing a compensation philosophy where pay equity is more than just the compliance issue. It can also be a strategic advantage in attracting and retaining top talent, as well as a strategic move to build a corporate brand that will appeal to consumers, she explained. Employers can use employment data as a strategic advantage, to help you go beyond compliance to brand internally and to build your brand externally, she added.

Before introducing the panelists, Ms. Jenkins-Pultz noted some factors that contribute to what she described as “the persistent gender wage gap.” One factor is occupational segregation, meaning, the concentration of women in certain female-dominated jobs and men in other male-dominated jobs. Women, especially women of color, were over-represented in occupations and industries that had the greatest job losses due to the Covid-19 pandemic, she noted. Occupational Segregation perpetuates the gender wage gap in that traditional female-dominated jobs tend to be devalued, she pointed out. Research shows that jobs that have higher percentages for women, pay lower wages on average than similar male-dominated occupations, but this can’t be explained away by the characteristics of the workers or requirements of the jobs, she asserted.

Another factor is that women’s work history and earnings are disrupted by the fact that they are also typically responsible for caregiving. This factor was also exacerbated by the pandemic, she reported. Time out of the workforce creates a penalty on earnings that is hard for women to recover when they return. Over a lifetime, this impact adds up to challenge women’s economic security during their retirement as well, she noted.

Reliance on prior salary to set compensation in a new position is another factor that weighs women down even when they gain new jobs and move into progressively, more responsible jobs, she added. She did not explain, however, why or how prior salary worked differentially as to women as opposed to men.

OFCCP Director of Enforcement said wage disparities are due to more than just “personal choice”

Next, Dr. Robert LaJeunesse, OFCCP Director of Enforcement gave a high-level overview of why OFCCP requires federal contractors to conduct an equal pay assessment and what data should be collected and analyzed. [EDITOR’S NOTE: Dr. LaJeunesse has adopted the philosophy that OFCCP’s Rules require “an equal pay assessment.” However, OFCCP has never had legal authority to pursue Equal Pay Act claims and no prior OFCCP administration has ever required equal pay, or pay equity, assessments. Rather, OFCCP has recently tasked Dr. LaJeunesse to attempt to “demand” employers complete voluntary “assessments” or to make it appear to federal contractors that they must do so].

“I think most people do perceive that there are disparities and outcomes when it comes to the pay or representation in the workforce,” he said. “However, it’s often just too easy to attribute that to personal choice.” [Editor’s Note: This seems to miss the point. It does not appear that anyone thinks there are no disparities in pay in the workforce between all men and all women, for example. However, there is no agreement we can find that those disparities are unlawful].

Chalking wage disparities up to merely personal choice ignores the true, nuanced reality of the labor market, according to Dr. LaJeunesse. Personal choice is influenced by discrimination and other problems, perceived and unperceived, he maintained. “That’s why if you’re going to do business with the federal government, we encourage and require that you look closely at your personnel activity” and “that includes both hiring and compensation as well as promotions and terminations analyses,” he said.

He then segued into noting that earlier the same day, OFCCP published a revised Directive on “Advancing Pay Equity Through Compensation Analysis.” The OFCCP asserts that the Directive clarifies the agency’s guidance and explains how the agency reviews contractors’ documentation of compliance.

As one of “the very few [federal] agencies” that looks at issues such as wage disparities systemically, the OFCCP has the authority to “do a deep dive” into federal contractors’ personnel activity to help “those people who don’t realize or can’t perceive that they are being disadvantaged,” he stated. According to Dr. LaJeunesse, the OFCCP audits “roughly 1,000” federal contractors annually. OFCCP’s audit and enforcement authority covers about 25% of the workforce, which amounts to at least 20,000 employers across the country, he reported.

“Under our regulations compensation is defined pretty broadly,” the Enforcement Director pointed out. “It’s not just a matter of base pay,” but any bonus, additional merit pay, and overtime pay. OFCCP requests “compensation data as part of our OMB-approved scheduling letter,” he explained. Then OFCCP “will take a deeper look at that data and we’ve been really trying to contextualize that data or scrutinize that data as much as we can turning it inside out to try to see” where problems exist and “maybe suggesting [a] learning opportunity” to address these problems.

Failure to promote, and thereby limiting women’s career advancement, is “one area that we would encourage contractors to look at a little more closely,” he said. [NOTE: OFCCP has alleged fewer than a half dozen unlawful promotions in the last 200,000 audits involving over 2 million employees and multiple millions of pay decisions.]   Another area is starting salary and whether women are “facing career stalls throughout their life.” [OFCCP has made no reported allegations of unlawful discrimination in starting pay decisions.] Starting pay is probably the most influential factor in a worker’s salary, he observed. Career exits and re-entries can also affect wages, he said, again noting that “it’s quite nuanced.”

“Many universities … do a very good job at analyzing their pay,” Dr. LaJeunesse said. “They look at pay from a variety of aggregations. From the entire faculty down to different ranks of the faculty [they] use different techniques.”

“It’s a good idea [for employers to conduct a pay analysis] just because if you’re in a competitive labor market – and the labor market is as tight now as it’s ever been – that’s going to help you in your recruitment efforts,” the Enforcement Director advised. He added, “also I think it’s going to move the needle sociologically” because “it’s just more difficult to get away with [..] disparities in your pay system” if you are aiming for quality recruitment. For public corporations, shareholder concerns are another reason to conduct a self-audit of pay. Moreover, “[w]hat we find is [that] those contractors” where OFCCP identify problems, “are typically not able to show that they’ve done an in-depth analysis” of their pay systems.

In addition, employers may want to evaluate pay due to requirements of jurisdictions beyond the federal government and OFCCP, Dr. LaJeunesse said, noting “strong state laws in many places including California.” Aside from that, the private bar and the EEOC can utilize Title VII to prosecute pay disparities.

Business panelists shared their perspectives and strategies

Ms. Jenkins-Pultz then moved on to the business panelists, who all pointed out that ensuring pay equity is important for employee morale. Jenny Terry, Director of Business Operations at Buffer, reported that the company’s approach to pay equity and compensation started back in 2013. That was when Buffer’s CEO, Joel Gascoigne, proposed the idea of disclosing compensation as an extension of one of its newly minted company values, which was default to transparency. The company decided to make those salaries transparent online via its blog at the end of 2013, and the management team was surprised by the positive response. An update to the 2013 blog is at: https://buffer.com/resources/salary-formula.

“We really want to ensure that we are paying the same for every role at the same level, regardless of gender or race or any other variable,” she stated. The company is “formula driven in an effort to remove as much bias as possible,” and compensation analysis “has been one very specific way that we have been able to accomplish that.” This transparency approach provides a “built-in accountability,” she noted.

The reaction to this transparency has been positive both internally and externally, Ms. Terry reported. Moreover, critical feedback from both their team and the community is “the only way that we’re going to grow and evolve and to learn,” she said. Taking that feedback informs the next generation of their compensation system, she added. “By and large [this transparency] has been received well both internally and externally and certainly has become very much a hallmark of our brand.”

Dan Kuang, Director of People Analytics Equality at Salesforce said that he gives his clients two choices: a pay equity analysis that is merely compliant-oriented or one that is proactive from a social and corporate citizenship perspective. Pay equity analysis that is just for compliance “isn’t going to attract passion or the best talent,” he warned. Anyone who dismisses the importance of pay equity analysis is “in for a rude awakening” and “their recruiting team is going to struggle,” he also stated.

“My pay equity understanding evolved,” Dr. Kuang noted, explaining that women’s pay equity challenges are different than those of men, and women of color also have unique challenges. One example he provided is that starting salary negotiation impacts certain groups more. “Once you start dissecting [pay analysis] into the different types of jobs” and pay segments “you realize people experience different challenges,” he said. Women apply for jobs they are overqualified for because they need to have a “slam dunk,” he pointed out. Yet, these lower-paying jobs impact starting salaries throughout a woman’s career.

Moreover, employers need to implement methodology and practices that do not allow for implicit bias because training can only go so far, he advised. Dr. Kuang said that he evaluates pay systemically and he works with clients to eliminate as many “explanatory factors as possible in our model.” Then he challenges them “to remove roadblocks that would explain away differences … because those explanatory factors can be proxies for social injustices or discrimination or bias against women.”

As to OFCCP compliance, it could be an issue of just labor market availability, he pointed out, and contractors should consider their utilization analyses. One example he gave was social workers; “good luck trying to find men [in that space],” he said. “It would be surprising if you have about 20 percent males.” Accordingly, federal contractors need to step back and recognize the pressures of the labor market. There is a risk that contractors can “over torque,” he cautioned. Nevertheless, some contractors may take the approach that they want to “redefine Society” and increase the representation of women in certain positions, despite the labor market, he observed.

“Pay equity is an ongoing battle” and it is “definitely a long-term journey,” Dr. Kuang also observed. It takes a multi-year plan, he said and for most employers, “it takes about two or three years to get there.”

Mimi Hernandez is the Executive Director of Prosperity Lab and Strategic Advisor to the Alum Rock Business Association. One of the reasons women start their own businesses is due to pay inequities and lack of advancement working for larger employers, she noted. For small business owners, a lot of the decisions they make are based on budgetary concerns. Many of these entrepreneurs are primarily opening the business to employ family members; thus, hiring outside of the family presents new challenges. When applying for a job with these employers, “it really comes down to a negotiation,” she said. Many women don’t ask for a raise or are not assertive and aggressive in their negotiations to reach a higher pay scale. Yet very few small businesses are going to offer a raise without an employee requesting it.

Ms. Hernandez said that she will take back the information learned through the webinar to help her small business clients consider not only the legal landscape but also the strategic business considerations of striving for pay equity.

For more on recent pay equity compliance develops, see also, WIR for Thursday, July 28, 2022: National Academy of Sciences Released Its Anticipated Pay Data Study; EEOC Commissioners Respond With Notably Different Takes and Tuesday, August 2, 2022: In Webinar Discussing Its Pay Data Study NASEM Expert Panel Noted Flawed Design, Data Problems, and Recommendations, plus John Fox’s blog: California Will Require Pay and Hours Worked Data Confidentially Reported By 10 “Wage Ranges” and 10 Job Categories by March 31, 2021, in a New Component 2 “Look-a-like” Reporting Law.

Thursday, August 18, 2022: Title VII Will Stop OFCCP “Cold in Its Tracks” From Releasing EEO-1 Component 2 Pay and Hours Worked Data: The “Abandoned Baby on The Porch” Legal Problem

First, What Happened? OFCCP’s Thursday public e-mail “Notice providing contractors an opportunity to object to the release of EEO-1 reports requested under FOIA” set off a flurry of overnight “mirror report” Blogs reporting OFCCP’s broadly disseminated e-mail Notice. OFCCP then followed on Friday, August 19, 2022, with this more detailed and descriptive Federal Register Notice as the Thursday e-mail had promised and foreshadowed. OFCCP’s e-mail Notice and Federal Register Notice stated that:

“The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has received a request under the Freedom of Information Act (FOIA) from Will Evans of the Center for Investigative Reporting (CIR) for all Type 2 Consolidated Employer Information Reports, Standard Form 100 (EEO-1 Report), filed by federal contractors from 2016-2020. OFCCP has reason to believe that the information requested may be protected from disclosure under FOIA Exemption 4, which protects disclosure of confidential commercial information, but has not yet determined whether the requested information is protected from disclosure under that exemption. OFCCP is requesting that entities that filed Type 2 Consolidated EEO-1 Reports as federal contractors at any time from 2016-2020, and object to the disclosure of this information, submit those objections to OFCCP within 30 days of the date of this Notice.”

Second, What’s Up? Many Bloggers feared OFCCP was on the verge of releasing to the public the copy of the EEO-1 Component 2 filings OFCCP had obtained from the EEOC. (Remember that sentence when you read down…VERY important sentence not seen in the (“let me be first to the keyboard to breathlessly report non time-sensitive information”) Blogs.

As we reported here on April 22, 2019;  here on April 29, 2019; here on May 6, 2019; here on May 28, 2019; here on June 10, 2019; here on June 24, 2019; here on July 8, 2019 (two stories, including the important EEOC e-mail reminder to Title VII-covered “employers” to file their Component 2 information); here on July 15, 2019 (two stories)…and we could go on, you will recall that the EEOC (not OFCCP…dropping another huge hint here…) had required employers with 100 or more employees and which were Title VII-covered, to file certain “Pay and Hours Worked” data (colloquially known as the EEO-1 Component 2 data) with the EEOC (not the OFCCP…dropping same hint…must be important) in 2019 for reporting years 2017 and 2018.

I know none of you can forget that filing: it was a heck of a hullabaloo and according to EEOC Commissioner Dhillon (who was the EEOC Chair at the time), employers and the EEOC spent an astonishing approximately $750 million getting the EEO-1 Component 2 data on file with the EEOC. I know you remember this 2019 excitement, (but I want you to also remember the fine print details…because they are very important here, and everyone has been overlooking them.)

Punchline: OFCCP has no discretion to disclose EEO-1 Component 2 information and thus does not need contractor input as to whether it may or should release the data or whether Exemption 4 to the FOIA (exempts otherwise required federal agency disclosure of documents if they constitute trade secrets) will block OFCCP’s release of the Component 2 data. (By the way: not likely: Good luck with that! No one has ever stopped OFCCP’s release of EEO-1 data OFCCP had obtained from federal contractors. (Boy, did I write that sentence carefully.) Many have tried in the courts over the years seeking to use Exemption 4 as the wedge to stop OFCCP from disclosing EEO-1 information, and ALL have failed.

I drafted the amendment to Exemption 4 to the FOIA in 1973 (became law in 1974) on the heels of the Watergate scandal. I was working for a non-profit First Amendment Washington D.C.-based advocacy group (The Reporters Committee for Freedom of the Press) located next to The White House representing the working press and editors—not the newspapers. But the RCFP work is a whole other Blog. (I know this sounds like an Al Gore-creator-of-the-Internet thing but, you have to understand the background which will become VERY important a few paras down from here as you think about OFCCP’s invitation to oppose release of the Component 2 data based on Exemption 4…a fool’s errand…and the wrong issue.)

Spoiler Alert: But think about Exemption 3 (exempts otherwise required federal agency disclosure of documents if they are protected by a federal non-disclosure statute…which are incorporated by reference into Exemption 3). Yeah, another Gore-like thing. I drafted the 1974 amendment to Exemption 3, too. Exemption 3 is the stopper IN THE UNIQUE CIRCUMSTANCES OF THIS PARTICULAR COMPONENT 2 COLLECTION DUE TO A POLICY DECISION THE OBAMA OFCCP MADE TO NOT COLLECT COMPONENT 2 DATA.

My RCFP assignment was to write strong amendments to Exemptions 3 and 4 to make them “tight and narrow” so they did not allow the federal agencies and the courts much discretion to DENY access to agency-held records. Remember, Congress and the American people were still in shock from Watergate a year later in 1973 when I began drafting. The press and the country wanted to know a lot of things from the federal government and from many large private corporations (which the Watergate Hearings in Congress revealed were clearly very cozy with both political parties and had put on file with many federal agencies and the Executive Office of the White House corporate documents of great interest to the public.)

But, back to the plot: Indeed, OFCCP and all its employees are under a specific statutory duty NOT to disclose the at-issue Component 2 Pay and Hours Worked data, as we will see, below. And, indeed, if OFCCP officers were to improperly disclose the Component 2 data, they would mandatorily be subject to both criminal and civil penalties (i.e., once a court were to decide the documents were released improperly (remember, OFCCP is a steward of your company documents), the court would have no discretion and would have to find those responsible for the improper release of the data to be criminally guilty and to financially fine them). WOW! Oh yeah. Really. This is not a laughing matter or a matter to be taken the least bit lightly. (This is probably true even if OFCCP’s lawyers (a) were to advise OFCCP incorrectly to release or (b) a court were to find that Exemption 4 did NOT prohibit release, and OFCCP subsequently released. Oh, savor that thought for a moment. That puts federal disclosure officers in a very difficult position: they must be right about disclosure (not just well-intentioned, but wrong) since they carry fiduciary-like duties and are charged to think about disclosure from a 360-degree point of reference…not just narrowly as to Exemption 4 (even though that particular exemption may not block disclosure. There is still Exemption 3 lurking out there…).

Remember that thought, below, when you start considering strategies to respond to OFCCP’s Notice…since one option is to just “lie in the grass” and say nothing and put the full burden on OFCCP not to screw this issue up. Remember, OFCCP is the steward of your Component 2 data even if you remain silent (and unless you provide consent to the release…which OFCCP oddly failed to request in either of its Notices). The agency now owns a fiduciary-like duty to protect your data if it is protection worthy.

(Indeed, OFCCP may grow to rue the day it made the fateful decision to onboard the Component 2 data from the EEOC. OFCCP will now find that it holds a “hot potato” (like finding an abandoned baby on your porch: you now become responsible to act and do something, or perhaps nothing–depending on applicable law. In this regard, you must go back and re-see NCIS Season 12, Episode 8 (“Semper Fortis”) on this issue of responsibility vs legal authority. For those of you who did not attend Catholic school or study Latin in high school, Semper Fortis means “Always Courageous”). OFCCP will find it MUCH safer to deny access and let the requestor file suit. But then, OFCCP must put forward the right legal arguments to protect its decision, and its liability for an improper release of the documents it is charged to protect, if protection is available. That, by the way, is why OFCCP will lawyer up, and will take a lot of time to carefully decide whether to release or deny access. And this is also why the EEOC will get involved, I predict, and take charge, as noted below.

So, Why Can’t OFCCP Release the Component 2 Data?

(It’s a 6-Step Waltz! Let’s go slowly step-by-step…just like dancing classes before the wedding)

Thursday, August 18, 2022: OFCCP Walks Back Its Earlier “Pay Equity” Directive but Now Tries to Impose An “Analysis of Compensation” on Federal Contractors Without Rulemaking

OFCCP published an email containing a link to a “revision” to its March 15, 2022 Directive 2022-01 (then titled “Pay Equity Audits”) by publishing a Revision 1 to the original and renaming the Directive to “Advancing Pay Equity Through Compensation Analysis.” The proper reference to the new Directive is thus Directive 2022-01 Revision 1. We wrote about the original  March 15, 2022 Directive in a two-part Blog titled “New OFCCP Directive on “Pay Equity Audits” Raises More Questions Than it Answers” beginning in a March 21, 2022 Blog and concluding in a March 28, 2022 Blog.

Revision 1 does not technically rescind the original Directive, but the Revision is in fact a total recission, renaming and redirection of the content of the original Directive.

OFCCP wrote the new Directive to make two main points:

1. Walk back the invasion of attorney-client privilege language of the original Directive

OFCCP needed to clean up the mess from its first Directive which misspoke and asserted the right to invade the attorney-client privilege to obtain any privileged company compensation analyses. The original Directive was inartfully drafted as we pointed out in our first (March 21) Blog discussing the new Directive. Even though the position taken in the original Directive was a “non-starter” and no one in the contractor defense legal community took it seriously (knowing it was just a “mindfart error” compounded by very poor drafting), the contractor community went “nuts” (technical legal terms!).

OFCCP has now walked that inartful language back. Interestingly, OFCCP’s e-mail leads with the walk back saying about the Revision:

“It explicitly reaffirms the agency’s position that it does not require the production of attorney-client privileged communications or attorney work product.”

The revised Directive buries this in a footnote, however, hanging off the end of the very first line of the new Directive announcing its new name:

“Directive 2022-01 was first issued on March 15, 2022. OFCCP has revised and reissued the Directive to update and clarify its guidance. This revised Directive explicitly reaffirms OFCCP’s position that it will not require the production of privileged communications or attorney work product.”

Well, OFCCP is proud even in retreat (casting its walk back as “reaffirming” its prior misstated position). But OFCCP did what it needed to do to correct the record and bury the prior inartful language.

2. OFCCP now seeks to insinuate new substantive “compensation analyses” on covered federal Government contractors

Well, OFCCP cannot do that. The substantive changes have no legal support and are unenforceable. We “beat that horse to death” pretty much in our two prior Blogs as to the original March 15, 2022, Directive so we will not belabor the point made there. That point to look for in those Blogs was that the Administrative Procedure Act (“APA”) requires OFCCP to undergo a formal Rulemaking (involving public Notice and Comment) to make substantive changes that impact covered federal Government contractors. That is not remarkable APA law.

The local application of that APA law to OFCCP specifically is the case Dave Copus and I successfully tried against OFCCP styled as Firestone Synthetic Rubber Latex Co. v. Marshall (Secretary of Labor), 507 F. Supp. 1339 (E.D. Tex. 1981) [any regulatory action having a substantial impact on the regulated community must be subject to formal APA Rulemaking, including all new interpretations of existing Rules, previously subjected to formal Rulemaking procedures].

So, what is new in OFCCP’s newly minted Directive 2022-01 Revision 1?

Well, a whole lot actually, but let us isolate on the guts of the new “regulatory requirements” OFCCP hopes to now kowtow contractors into accepting via an entirely new interpretation of 41 CFR Section 60-2.17(b)(3). OFCCP’s new interpretation of (b)(3) is that OFCCP has always required a fully detailed compensation analysis as part and parcel of every AAP for Minorities and Women—and I guess OFCCP would also say as to Individuals with Disabilities and as to Protected Veterans…but who knows: this is all off-the-cuff musings at OFCCP (which OFCCP’s audit files over the decades will quickly debunk and prove false).

Here is the mechanism OFCCP hopes to use to leverage contractors to breathe life into full-blown annually required compensation analyses:

“… for OFCCP to determine that a contractor has satisfied its obligations under 41 CFR 60-2.17(b)(3), OFCCP requires that contractors provide documentation that demonstrates at least the following:

1. when the compensation analysis was completed;
2. the number of employees the compensation analysis included and the number and categories of employees the compensation analysis excluded;⁹
3. which forms of compensation were analyzed and, where applicable, how the different forms of compensation were separated or combined for analysis (e.g., base pay alone, base pay combined with bonuses, etc.); [fn omitted]
4. that compensation was analyzed by gender, race, and ethnicity; and
5. the method of analysis employed by the contractor (e.g., multiple regression analysis, decomposition regression analysis, meta-analytic tests of z-scores, compa-ratio regression analysis, rank-sums tests, career-stall analysis, average pay ratio, cohort analysis, etc.).’

Where the rubber hits the road

The critical questions will come in OFCCP audits.

First, will most contractors know that OFCCP is trampling their rights not to submit to this new interpretation and the large financial cost burdens this interpretation inappropriately imposes on federal contractors?

Second, will contractors resist, professionally but firmly, this inappropriate and unregulated expansion of OFCCP authority and asserted “requirements?” Or will they just roll over, complain bitterly and privately, have their government relations department speak poorly of OFCCP on Capitol Hill for behaving as a rogue agency, but nonetheless begrudgingly send OFCCP the data while conversing thereafter with OFCCP through clenched teeth? (And OFCCP can never understand why its budget has steadily declined in real dollars in each and every year for the past 13 years).

Well, each to his or her own. What do you favor; what do you fear?

Thursday, August 18, 2022: Federal Judge Cites First Amendment to Enjoin Florida’s New Law Barring Employers from Teaching Critical Race Theory

Thursday, August 18, 2022: Federal Judge Cites First Amendment to Enjoin Florida’s New Law Barring Employers from Teaching Critical Race Theory

The case is Honeyfund.com, Inc. at al., v. DeSantis, Case No.: 4:22cv227-MW/MAF. Judge Mark. E. Walker issued a Preliminary Injunction stopping enforcement of the new law pending a trial on the merits:

“Before this Court is a motion for a preliminary injunction, asking this Court to enjoin a host of Government officials from enforcing portions of the Individual Freedom Act—a law that prohibits employers from endorsing any of eight concepts during any mandatory employment activity. Because the challenged provision of the Act is a naked viewpoint-based regulation on speech that does not pass strict scrutiny [under the First Amendment to the U.S. Constitution], Plaintiffs’ motion for a preliminary injunction…is GRANTED in part.” Slip Opinion at p. 2.

The at-issue Florida state law is H.B. 7, titled the “Individual Freedom Act,” which acted as an amendment to Florida’s Civil Rights Act. Florida Governor Ron DeSantis (R) signed the measure into law in April and it became legally effective on July 1, 2022.

Here is the centerpiece of the statute which amended the definition of an “unlawful employment practice” to include requiring employees to attend a training (by whatever name) that taught or required employees to listen to any one or more of the below eight listed topics:

“(a) Subjecting any individual, as a condition of employment, membership, certification, licensing, credentialing, or passing an examination, to training, instruction, or any other required activity that espouses, promotes, advances, inculcates, or compels such individual to believe any of the following concepts constitutes discrimination based on race, color, sex, or national origin under this section:

1. Members of one race, color, sex, or national origin are morally superior to members of another race, color, sex, or national origin.
2. An individual, by virtue of his or her race, color, sex, or national origin, is inherently racist, sexist, or oppressive, whether consciously or unconsciously.
3. An individual’s moral character or status as either privileged or oppressed is necessarily determined by his or her race, color, sex, or national origin.
4. Members of one race, color, sex, or national origin cannot and should not attempt to treat others without respect to race, color, sex, or national origin.
5. An individual, by virtue of his or her race, color, sex, or national origin, bears responsibility for, or should be discriminated against or receive adverse treatment because of, actions committed in the past by other members of the same race, color, sex, or national origin.
6. An individual, by virtue of his or her race, color, sex, or national origin, should be discriminated against or receive adverse treatment to achieve diversity, equity, or inclusion.
7. An individual, by virtue of his or her race, color, sex, or national origin, bears personal responsibility for and must feel guilt, anguish, or other forms of psychological distress because of actions, in which the individual played no part, committed in the past by other members of the same race, color, sex, or national origin.
8. Such virtues as merit, excellence, hard work, fairness, neutrality, objectivity, and racial colorblindness are racist or sexist, or were created by members of a particular race, color, sex, or national origin to oppress members of another race, color, sex, or national origin.

(b) Paragraph (a) may not be construed to prohibit discussion of the concepts listed therein as part of a course of training or instruction, provided such training or instruction is given in an objective manner without endorsement of the concepts. § 760.10(8), Fla. Stat”

Absent a rare interlocutory appeal to the United States Court of Appeals for the Eleventh Circuit (Atlanta), Judge Walker’s next act will be to set the case down for trial on the merits.

Friday, July 22, 2022: White House Memo Accentuated Importance of Federal Zero Trust Security and IT Modernization Goals

Last month, the White House issued, without public fanfare, a memorandum to the heads of federal Executive Branch departments on “Administration Cybersecurity Priorities for the FY 2024 Budget.”  The Memorandum (M-22-16) emphasized that implementing the federal government’s zero trust security and IT modernization goals must be a top priority.

We write this story to alert the private sector that (a) the federal government is now beginning a major journey to re-shape its document security and retention policies and practices and (b) to be on the lookout for coming opportunities to engage that process. Changes will be coming it appears within the next two years in the way federal agencies will intake, store and protect documents obtained from the public. This is comforting as concerns for information security now have risen to top-of-mind priority within private corporations. As always, though, the federal agencies need private sector input and oversight, especially as to issues as critical as this one to corporate document security concerns. So, we publish this BOLO.

What Is Going to Happen and When?

The Office of Management and Budget (“OMB”) and the Office of the National Cyber Director (ONCD) will jointly review the various agencies’ responses to these priorities, identify potential gaps, and potential solutions to those gaps. OMB will coordinate with ONCD to provide feedback to agencies on whether the priorities are adequately addressed and consistent with the overall cybersecurity strategy and policy—aiding agencies’ multi-year planning through the regular budget process.

Authored by OMB Director Shalanda D. Young and National Cyber Director Chris Inglis (the Directors), the memo references President Biden’s May 2021, Executive Order (EO) 14028 (86 FR 26633), on “Improving the Nation’s Cybersecurity.” In that EO, the President called on the Federal Civilian Executive Branch (FCEB) agencies to lead by example in strengthening and modernizing their own information technology (IT) systems and networks. “FCEB agencies will lead by example through prioritizing Zero Trust Implementation and IT Modernization in FY 2024 Budget submissions,” the Directors wrote.

Zero Trust Strategy

The Federal Zero Trust Strategy was detailed in OMB Memorandum M-22-09 dated January 26, 2022. It requires agencies to achieve specific zero trust security goals by the end of FY 2024 (September 30, 2024). To this end, the Directors expect budget submissions to prioritize this work to ensure it is completed. The agencies have already submitted zero trust implementation plans to OMB, and a cross-government team of cybersecurity experts from OMB, ONCD, and Cybersecurity and Infrastructure Security Agency (CISA) are now engaging with agencies to refine these plans and define ambitious, achievable goals, the Directors reported. The Strategy is a significant shift in FCEB operations, requiring the agencies to define priority goals “to achieve a consistent enterprise-wide baseline for cybersecurity grounded in principles of least privilege, minimizing attack surface, and designing protections around an assumption that agency perimeters should be considered compromised” the memo explained.

IT modernization for federal Cybersecurity must be “by design”

Aging systems and technical debt limit government effectiveness as well as its ability to implement modern security practices, the memo observed. Therefore, “agencies should prioritize technology modernizations that lead with security integrated during the design phase, as well as throughout the system lifecycle.” The President’s Management Agenda (PMA) is a roadmap to achieve these ends, the memo stated. “The PMA calls for building excellent, equitable, and secure Federal services and customer experiences and for agencies to continue to enhance Federal IT and cybersecurity as key enablers of mission delivery,” the Directors noted.

Accordingly, the OMB Memorandum directs the federal Executive Branch agencies that their FY 2024 budgets must prioritize:

• The accelerated adoption and use of secure cloud infrastructure and services, leveraging zero trust architecture;
• The development and deployment of federal shared products, services, and standards that empower secure customer experiences—particularly among High Impact Service Providers;
• Use of shared security technologies, including active engagement with the Department of Homeland Security’s Continuous Diagnostics and Mitigation program to ensure up-to-date technologies are implemented and agency requirements are funded;
• Shared awareness between security and IT operations teams through cohesive, coordinated, and, where feasible, consolidated operations across the federal enterprise; and,
• Agile development practices, and integration of the National Institute of Standards and Technology (NIST) Secure Software Development Framework and related Software Supply Chain Security Guidance into agency software procurement and development practices.

The United States is Transitioning From “Digitally Complemented” to “Digitally Suffused”

The Directors also called on the agencies to deepen cross-sector collaboration in defense of critical infrastructure. The (FCEB) agencies must facilitate an unprecedented level of collaboration between the public and private sectors to ensure the defense and resilience of the U.S. infrastructure’s defense and resilience against cyber threats, they stated. The agencies will build this collaboration by prioritizing their sector risk management agency (SRMA) responsibilities and ensuring adequate information sharing through designated cybersecurity centers.

The FCEB agencies must also prioritize the nation’s physical infrastructure, human capital, and supply chain risk management, the Directors said. The decisions agencies make today about how to shape, direct, and secure that transition will reverberate for decades into the future as the country “transitions from a digitally complemented economy to a digitally suffused one,” the memo states.

In Brief

Tuesday, August 16, 2022: USDOL Created the “ApprenticeshipUSA” Brand and Announced the Start of An Online Dialogue

The US Department of Labor’s Office of Apprenticeship Created the “ApprenticeshipUSA” brand to establish an identity and shared understanding of the national Registered Apprenticeship system with its stakeholders, the agency announced in a press release. In addition, the Department opened a national online public dialogue on “Advancing the National Apprenticeship System.” The dialogue will continue through September 5, 2022.

Monday, August 15, 2022: USDOL WHD Reminded Stakeholders About Upcoming, Free Live Q&A Sessions on Prevailing Wage Compliance

USDOL’s  Department of Labor Wage and Hour Division once again announced its live, online question-and-answer sessions on compliance with the Davis-Bacon and Related Acts (DBA) and the McNamara-O’Hara Service Contract Act (SCA). These sessions were first announced in March 2022. The live DBA session is scheduled for September 13 and the live SCA session is scheduled for September 14. Both sessions will run from 1:30 to 3:30 p.m. EDT. The seminars will include video training on DBA- and SCA-related topics that participants can view on demand. Seminar attendance is free, but registration is required. 

Tuesday, August 16, 2022: DOL Revealed Joint Message by Nine Federal Agencies to State & Local Governments on Competitive Integrated Employment for Workers with Disabilities

The USDOL’s Office of Disability Employment Policy and Employment and Training Administration joined seven other federal agencies in issuing a joint communication to state and local governments on “Resource Leveraging & Service Coordination to Increase Competitive Integrated Employment for Individuals with Disabilities.” Issued earlier this month, USDOL announced this communication in a press release on Tuesday. The message, along with a corresponding frequently asked questions document, encouraged state and local partners “to proactively implement resource blending, braiding and sequencing strategies, as appropriate, across systems’ to improve Competitive Integrated Employment outcomes for youth and adults with disabilities.

“With limited resources, a single government agency may find it difficult to provide the full range of services that meet all the needs of jobseekers with significant disabilities,” said Assistant Secretary of Labor for Disability Employment Policy Taryn M. Williams in the press release. “This joint communication helps state and local agencies understand that resources can and should be leveraged and used as an effective strategy in making Competitive Integrated Employment a reality for those facing multiple barriers to employment.”

Looking Ahead:
Upcoming Date Reminders

Thursday, August 25, 2022: DirectEmployers Masterclass Roundtable will discuss “When DE&I Policies and Practices Become Unlawful Employment Discrimination”

• Candee J. Chambers, Host & Moderator from DirectEmployers Association
• Matt Nusbaum, Esq., Biddle Consulting Group
• Mikey Meagher, Manager of DE&I Strategies from DirectEmployers Association
• John C. Fox, Esq., Fox, Wang & Morgan P.C.

Friday, September 30, 2022: 2022 VETS-4212 filing deadline. The reporting cycle began on August 1, 2022:  https://www.dol.gov/agencies/vets/programs/vets4212

THIS COLUMN IS MEANT TO ASSIST IN A GENERAL UNDERSTANDING OF THE CURRENT LAW AND PRACTICE RELATING TO OFCCP. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. COMPANIES OR INDIVIDUALS WITH PARTICULAR QUESTIONS SHOULD SEEK ADVICE OF COUNSEL.