OFCCP Week In Review: September 26, 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 Hackerott. In today’s edition, they discuss:

• Backing Off From Several Proposed Changes, OFCCP Published FAAP Directive Revision #3 Hoping to Spawn More FAAPs as Contractor Community Increasingly Shuns Them
• Sparks Unexpectedly Fly at The Beginning of the Latest US EEOC Full Commission Hearing as Republican Commissioners Ambushed the Democrat Chair to Coax Agency Transparency
• US DOL Published Final Rule to Rescind Industry-Recognized Apprenticeship Programs and Direct DOL Resources to Union-Supported Registered Apprenticeship Programs
• Looking Ahead: Upcoming Date Reminders

Wednesday, September 21, 2022: Backing Off From Several Proposed Changes, OFCCP Published FAAP Directive Revision #3 Hoping to Spawn More FAAPs as Contractor Community Increasingly Shuns Them

Agency will not require proposed management change notifications or Portal submission, and will not change termination notice time period

OFCCP issued a third revision to its Functional Affirmative Action Programs (FAAP) Directive (Directive 2013-01, Revision 3). The Office of Management and Budget (OMB) has now approved use of the Directive, from a paperwork perspective, through September 25, 2025.

This revision made some minor changes to the modifications OFCCP had proposed in February 2022 to OMB to policies and procedures for interested contractors to request, modify, and renew FAAP agreements. Notably, OFCCP tabled its earlier proposed requirement that would have required contractors to submit FAAPs via its AAP submission Portal. (The rationale, discussed, below, is interesting). It also nixed its proposal to modify certain notice requirements regarding management changes (that Soul Cherradi, at DirectEmployers’ Member company BP Petroleum had championed on behalf of FAAP contractors) as well as the agency’s proposal to reduce the termination notice period.

According to an email sent to stakeholders the day after the OFCCP published the revised Directive:

…the revisions provide “clarification regarding procedural requirements, in addition to minor language and formatting changes.”

Any contractor that enters into a FAAP agreement or modifies or renews a current agreement on or after the Directive’s September 21, 2022, effective date is subject to the revised Directive.

Number of FAAPS Continues to Decline, Precipitously: Relevance of Program Now in Question

“OFCCP currently has FAAP agreements with 86 contractors that cover 2,509 functional units,” the agency reported on page 15 of a 21-page Supporting Statement the agency provided to the Office of Management and Budget on September 7, 2022 (addressing collection hour burdens). The agency added, “OFCCP estimates that there will be approximately five requests for new FAAP agreements each year, an estimate that is based on the number of agreements requested in the previous three years.” However, contractors with FAAPs continue to NOT renew at a higher rate than contractors sign-up for new FAAP Agreements. The number of FAAP agreements has dropped by almost two-thirds since the approximately 225 agreements the Obama and Trump Administrations reported.

“The number of contractors who request a FAAP is a small portion of OFCCP’s contractor universe,” the agency also noted (on page 8 of its Supporting Statement, addressing small business impact). That small portion is in fact far less than .5%=½ of 1% of the 25,000 covered federal Government contractors OFCCP reports exist, even apart from an unknown and uncounted number of covered federal Government “subcontractors” subject to one or more of OFCCP’s Rules.

How We Got Here

As we reported in February of this year, OFCCP published a Federal Register Notice seeking comments on its proposal to renew – with changes – the “Information Collection Requirement” (“ICR”) for supply and service contractors seeking approval to develop FAAPs. The comment period on that proposal ended on April 11, 2022. OFCCP then read the public comments and distilled its conclusions into a further revised proposal to OMB it delivered on May 27, 2022. The previous information collection approval (Directive 2013-01 Revision 2) then expired on June 30, 2022, without OMB response to OFCCP’s May 27, 2022 request for renewal of its ICR authority. OMB then, on September 21, 2022 (last Wednesday)—after an almost 4-month delay)—finally approved OFCCP’s May 27, 2002, revised proposal. OFCCP then immediately published its Revised FAAP Directive #3, lying ready and waiting in its launch tube, the same day (last Wednesday, September 21, 2022).

OFCCP’s February Notice was not seeking to change an OFCCP Rule pursuant to the Administrative Procedure Act. Rather, OFCCP was merely seeking public comment in support of an “ICR” affecting 10 or more members of the public for which OFCCP was seeking OMB’s approval pursuant to the Paperwork Reduction Act. Notices for Public Rulemakings (“NPRMs”) published in the Federal Register seek the legal authority to change substantive agency Rules (aka “regulations” in informal “street talk”) having the binding force and effect of law. Agency “Notices” of an Information Collection Requirement–like OFCCP’s February 2022 Notice–seek authority only from OMB pursuant to its authority to enforce the Paperwork Reduction Act against federal agencies when they seek to impose an information collection burden on 10 or more members of the regulated community.

OFCCP Did Listen to Some Contractor Commenters to Bolster Its Flagging FAAP Program

OFCCP’s September 7, 2022, Supporting Statement to OMB addressed the six comments the agency had received in response to its February proposed revisions to FAAP Directive #2. “After carefully considering these comments, OFCCP has decided to proceed with the proposed information collection, with some modifications,” the statement said. “Based on the public comments, OFCCP will modify the requirement to notify the agency of primary corporate contact changes and will not require submission of FAAP documents via the Contractor Portal.”

Agency Tabled Proposed FAAP Portal Submission Requirements

As to the Contractor Portal, OFCCP acknowledged (Supporting Statement, page 10) that contractors may need additional time to become familiar with the Portal before requiring FAAP document submissions via this method. Therefore, OFCCP will allow contractors to continue to submit the requests and documentation to the FAAP email address at OFCCP_FAAP-UNIT@dol.gov. “As contractors become more familiar with the Contractor Portal, OFCCP may revisit this issue in future information collection requests,” the agency wrote.

EDITOR’s NOTE: This is where OFCCP Rulemaking would have been helpful to the agency, although OFCCP historically and currently loathes formal Rulemaking given the controversy in the contractor community which inevitably surrounds any proposed change. Moreover, many impatient OFCCP Directors just decide to “jamb it through” without formal otherwise required Rulemaking to just “Get it Done” and hope the federal contractor community will just either follow OFCCP’s lead without contest or will just “knuckle under.” OFCCP lacks the legal authority, without Rulemaking pursuant to the Administrative Procedure Act (OMB approval alone is not enough: the agency must have both a substantive Rule in place AND OMB approval to do so) to require contractors to submit data electronically and/or digitally. OFCCP does not dispute this and has repeatedly so advised OMB that it agrees that the agency needs formal Rulemaking to require electronic and digital filings with the agency.

So, what OFCCP did here is to mirror what it did when it created the Contractor Portal earlier this year: it has offered an alternative method of filing documents with OFCCP other than via its electronic Contractor Portal for those contractors which do not wish to voluntarily agree to submit information via the OFCCP Contractor Portal. One day, OFCCP will publish a Rulemaking requiring electronic and/or digital filings of contractor documents to be delivered to OFCCP.

In the meantime, many contractors fearing that OFCCP lacks sufficient security and data privacy procedures and Rules to properly protect their confidential electronic documents from computer “hacking,” leaks, and disclosure outside of OFCCP pursuant to the FOIA continue to hope that day never comes. And meanwhile, OFCCP continues to orally insist contractors must file all communications with OFCCP in electronic or digital format. The transition to the “Digital Age” is proving difficult for both OFCCP and the federal contractor community.

OFCCP Also Nixed Proposed Modifications to Notice Requirements on Management Changes

In its February 2022 proposal, OFCCP had suggested updating its current definition of the term “modification” as used in FAAP Agreements to require contractors to report changes to any one of the contractor’s management officials covered within a FAAP. A related notification proposal would also have required contractors to identify which functional or business unit was impacted by the change and include the name, address, and email address of the new management official. OFCCP’s February 2022 proposal would have also required that contractors notify the agency within 60 calendar days of the change of a management official.

In its September 7, 2022, Supporting Statement (page 12) to OMB, OFCCP noted that it had received two comments disagreeing with this proposal. Both commenters claimed that OFCCP had no identifiable need for the name, address, and email address of each new corporate management official because the agency has contact information for the contractor representatives managing the FAAP Agreement and affirmative action compliance. Moreover, the commenters noted that managing officials frequently change, and OFCCP’s proposal would therefore make this obligation very time-consuming and burdensome.

After considering these points, OFCCP decided to maintain the requirement to notify the agency within 60 calendar days of a change in only the primary corporate contact. This decision means that contractors will not be required to report on changes to the company’s managing officials. See Sections 5 (“Background”), 7(f) and 9(c) of the newly revised Directive.

Termination Notice Period Remains Unchanged

OFCCP proposed to change – to 30 calendar days – the existing 90-calendar-day period during which either party may terminate the FAAP agreement with written notice. Concurrently, the agency had also proposed to change the current 90 calendar days’ notice – to 30 calendar days – when it denies a request to renew a FAAP. In response to contractor concerns that they need earlier notice of terminations, OFCCP will maintain both of the current 90-day notice periods for terminating a FAAP and to deny renewal.

Thursday, September 22, 2022: Sparks Unexpectedly Fly at The Beginning of the Latest US EEOC Full Commission Hearing as Republican Commissioners Ambushed the Democrat Chair to Coax Agency Transparency

In a surprise action during a full and formal public meeting to discuss its Strategic Enforcement Plan (SEP), the U.S. Equal Employment Opportunity Commission (EEOC) voted unanimously to publish its draft SEP in the Federal Register and to provide “the public with an opportunity to publicly comment on that plan.” The meeting at its headquarters in Washington, D.C. was the final session of the agency’s three-part listening series to hear public input regarding priorities and activities that should be included in its soon to be forthcoming SEP.

The vote was in response to a Motion by Commissioner Andrea Lucas (R) that EEOC Chair Charlotte Burrows (D), appointed last year by President Biden, observed was “unexpected and unplanned.” Twelve witnesses waiting to provide their comments on the SEP to the Commissioners were treated to almost 30 minutes of strained political sparring between the Commissioners. Obviously perturbed, flustered, and ambushed by Commissioner Lucas’ Motion, a strained discussion of the two-part Motion then ensued for just over 30 minutes at the beginning of the five-plus hour meeting at the agency’s headquarters in Washington, D.C., entitled “Shaping the EEOC’s Strategic Enforcement Priorities.”

Chair Burrows, looking both bothered and fatigued by the Motion, immediately tried to dismiss Commissioner Lucas’ Motion out-of-hand saying she would take the Commissioners’ suggestion “under advisement.” Former EEOC Chair Janet Dhillon (R), now a Commissioner of the EEOC, intervened immediately, unemotionally and very succinctly demonstrated a commanding knowledge of Roberts Rules of Order (which govern Commission meetings). An obviously very practiced Commissioner Dhillon thereafter offered numerous Roberts’ Rules “Points of Order” which eventually trapped and forced a resigned and exasperated Chair Burrows to call for the vote she had initially vigorously resisted, which then passed unanimously. All that was missing for viewers of this scrimmage was popcorn and a hot dog!

You may watch the stressful beginning of this public meeting courtesy of the EEOC’s video recording of the proceedings. Be sure to grab a beer or soda, too, before you hit start! It’s not Netflix, but this is still pretty entertaining. And we thought all EEOC Commissioner meetings were boring and tedious…Commissioner Lucas has forever changed that image for us.

So, Who Cares Anyway Whether the Commission Publishes Its Request for Comments on its SEP in the Federal Register or Just on the EEOC Website and Whether it Collects Comments from the Public in Only a Private EEOC Email Inbox?

Unlike the OFCCP (and most federal agencies), which publishes on its public Website comments the agency receives from the public in response to the agency’s requests for comments and does so in real time as those comments are received, the EEOC solicits comments to only a private email address at the EEOC. Sequestering the public comments in an EEOC email in-box does not allow either public access to the comments or even to the EEOC Commissioners (absent the Chair’s direction to career staff to distribute them to the full Commission).

The Republican Commissioners, eventually joined by both Democrat Commissioners, felt that providing a “centralized location” available to the public would increase transparency by allowing a more complete discussion of enforcement issues. The reigning thought was also that by allowing commenters to see the comments of others and to then elaborate on those comments, public visibility of the same would then spur further comments and more completely and transparently illuminate the major issues of concern. Chair Burrows initially opposed the Motion because of her concern for costs, reportedly amounting to $552 per Federal Register page. [The EEOC’s budget for FY 2022 is close to half a Billion dollars: the EEOC’s 2018-2022 Final SEP runs 45 WORD pages which would translate roughly to about 20 Federal Register pages…so around $10,000 to publish a like SEP for 2023-2026 in the Federal Register). Vice Chair Samuels concern was that the Motion was “premature,” and trying to be supportive of the Chair, she noted that she would have preferred more information about the Federal Register costs of publication.

As another sign of the continuing infighting and political jousting going on at the EEOC at the Commission level, Commissioner Dhillon had emphasized to Chair Burrows during debate on the Motion that Commissioner Lucas’ Motion was in two parts: to publish the final draft SEP in the Federal Register and also “providing the public with an opportunity to publicly comment on that draft plan” (emphasis added). See meeting video transcript beginning at minute 18:00 to 18:15 for Commissioner Lucas’ oral Motion.

And that was the motion the five Commissioners then voted on and passed unanimously. However, less than 24 hours later, the Commission published a Press Release advising the public of the Commission’s contemplated Federal Register publication of the Commission’s final SEP for 2023-2026, but inviting the public to send its comments to only a private EEOC email address. (Indeed, this was the private EEOC email address Chair Burrows had mentioned in her oral opposition to the Motion that would be satisfactory to her for the public to post its comments, before seeing the “handwriting on the wall” and eventually voting for the Motion, without any suggested amendment). Moreover, the EEOC Press Release makes no mention of a future public “centralized location” (like reg.gov) for the public to comment:

“[f]rom here, the agency will continue to refine the draft document which will be posted to EEOC’s website and published in the Federal Register for public comment before a Commission vote. The public is invited to submit comment[s] on the plan at SEP2022@eeoc.gov.”

Why This SEP, Now?

Every five years the Commission issues a SEP to outline its enforcement and outreach priorities. Now that the agency has completed the listening session series, it will consider the feedback from those sessions and any written input to develop a proposed SEP that will be approved by a vote of the full Commission. If approved, the new SEP would apply through the end of the fiscal year 2026.

The Witnesses Then Spoke to The Commission (beginning at 30:49 of the EEOC’s video recording of the meeting).

Within less than a second of this unhappy vote for her, Chair Burrows switched the discussion immediately to move on to hearing remarks from the twelve scheduled witnesses over three different panels. These witnesses included representatives from civil rights and workers’ rights organizations, employer and human resource representatives, and attorneys representing both plaintiffs and defendants. They urged the agency to prioritize addressing racial discrimination as a barrier to well-paid jobs, pregnancy discrimination, LGBTQ rights, and the plight of immigrant workers. Other topics included artificial intelligence, long COVID, and the Commission’s past (and possibly future) collection of pay data broken down by race and gender.

How We Got Here:

The second meeting in the series was held on September 12, 2022, in Washington, D.C. It covered “Identifying Vulnerable Workers and Reaching Underserved Communities.”  The first gathering in the series was held in Buffalo, NY on August 22, 2022. The meeting, entitled “Advancing Racial and Economic Justice in the Workplace,” was the Commission’s first meeting held outside of Washington, D.C. since 2015.

Monday, September 26, 2022: US DOL Published Final Rule to Rescind Industry-Recognized Apprenticeship Programs and Direct DOL Resources to Union-Supported Registered Apprenticeship Programs

Here’s the lingo: IRAPs vs USRAPs: the difference is who is creating the apprenticeship training rules.

The U.S. Department of Labor’s (USDOL’s) Employment and Training Administration (ETA) published a final rule rescinding the Trump ETA’s controversial Industry-Recognized Apprenticeship Program (IRAP) and directing departmental resources toward union-supported Registered Apprenticeships Programs.

The final rule rescinds the Trump ETA’s 2020 regulation that established a process under which the Department’s Office of Apprenticeship (OA) Administrator (“Administrator”) was authorized to grant recognition to qualified third-party entities, known as Standards Recognition Entities (SREs), which in turn were authorized to evaluate and extend recognition to Industry-Recognized Apprenticeship Programs (IRAPs). In addition, the final rule makes necessary conforming changes to ETA’s Rules governing the registration of apprenticeship programs.

How We Got Here:

As we previously reported, on February 17, 2022, President Biden issued Executive Order (EO) 14016 rescinding President Trump’s EO 13801 and directing federal Executive Branch agencies to promptly consider taking steps to rescind any orders, rules, regulations, guidelines, or policies implementing the Trump EO. President Trump’s EO created an industry-designed apprentice program as an alternative to the “Registered Apprenticeships” that ETA and national unions in the United States favored. As a result of President Biden’s Executive Order, Registered Apprenticeship Programs are now the only available federally sponsored apprenticeship programs ETA may approve for federal funding.

In a press release on Friday, the ETA stated that the Department issued this final rule after reviewing the IRAP as required by Executive Order 14016. “After reviewing the previous rule, the department determined EO 13801 had created a duplicative, lower-quality system that was not in the best interest of workers and industries,” the ETA wrote. “By contrast, the Registered Apprenticeship system has an established 85-year record of promoting apprentices’ welfare and ensuring program quality in an expanding number of diverse occupations and industries. The RA system offers higher quality training and worker protection standards, including progressively increasing wages and equal employment opportunity requirements,” according to the Department.

The Final Rule is effective November 25, 2022.

Looking Ahead: Upcoming Date Reminders

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

Thursday, October 13, 2022: Deadline to submit comments on USDOL proposal to amend union “Persuader Reports” to add federal contractor identification (RIN 1245-AA13) – https://www.regulations.gov/search?filter=RIN%201245-AA13

Tuesday, October 18, 2022: Deadline to submit comments on FAR Council’s proposed Rule mandating Project Labor Agreements on large federal construction projects – https://www.regulations.gov/document/FAR-2022-0003-0001

Wednesday, October 19, 2022: Deadline to submit objections to OFCCP regarding EEO-1 Data (Component 1, Type 2) FOIA disclosure request (previous September 19 deadline extended) – https://www.dol.gov/agencies/ofccp/submitter-notice-response-portal

Thursday, October 20, 2022: DE Masterclass Employment Law Roundtable | Report of Successful DE&I Programs That Are Lawful And Won’t Get You Into Trouble – https://directemployers.zoom.us/webinar/register/WN_7VabA4ubRkaRHFfSP9d32g

Tuesday, November 1, 2022: Deadline to submit comments on US General Services Administration’s future rulemaking regarding union solicitations of federal contractor employees in GSA-controlled buildings – https://www.regulations.gov/docket/GSA-FMR-2022-0011

Monday, November 21, 2022: Deadline to submit comments on National Labor Relations Board’s proposed Rule to Determine Joint Employer Status – https://www.regulations.gov/docket/NLRB-2022-0001

Wednesday, April 12 – Friday, April 14, 2023: DEAMcon23 Chicago (Registrations open now)