Tuesday, January 17, 2023: U.S. Appellate Court for D.C. Circuit Blocked Key Aspects of Trump-Era NLRB Union Election Rule

Trump NLRB Should Have Sought Public Comment on 3 Key Changes, Court Majority Ruled

Double-edged Sword as Biden Federal Agencies Are Also Trying to Force Regulatory Shortcuts

Official seal for the United States Court of Appeals, District of Columbia CircuitIn a 2-1 decision, the U.S. Court of Appeals for the D.C. Circuit ruled that the (Trump) National Labor Relations Board (NLRB) violated the Administrative Procedure Act (APA) by failing to seek formal APA Rulemaking through public “Notice and Comment” before adopting three changes to its 2019 Rule to increase the time for union elections (AFL-CIO v. NLRB, Case Nos. 20-5223 and 20-5226). However, two other parts of the Rule impacted only internal agency procedures and, thus, did not require APA Rulemaking, the court concluded. Accordingly, the Biden NLRB may change those internal agency procedures tomorrow without formal APA Rulemaking.

The panel included Obama-appointees Circuit Judges Cornelia Pillard and Sri Srinivasan and Trump-appointee Neomi Rao. Judge Pillard wrote the 47-page majority opinion. Judge Rao, whose name might sound distantly familiar, wrote a 22-page opinion concurring in part and dissenting in part. (Sidenote: From July 2017 to the time of her appointment to the D.C. Circuit in March 2019, Judge Rao was the Administrator of the Office of Information and Regulatory Affairs (OIRA) in the White House Office of Management and Budget.)

How We Got Here

Once a union seeks a union election, an election campaign begins under strict rules as the union and the company then vie for the votes of the employees to be in a union or not upon a secret ballot majority vote. Companies usually prefer a longer period of time to campaign because the union has typically been planning its campaign and has been secretly meeting with disgruntled employees for some time before the union alerts the company to its plan to call for a vote to unionize the company’s employees.

In December 2019, the Trump-Era NLRB published a Final Rule that rolled back the Obama-Era NLRB’s “Quickie Election Rule.” The Obama NLRB had published the Quickie Election Rule in December 2014 which took effect in April 2015. (See our story here.) The 2014 Rule dramatically shrank the election campaign timeframe. Score 1 for union supporters.

Although the Board issued the 2019 Rule without a public notice and comment period, the Trump NLRB asserted at the time that the Rule fell within the APA’s exception for “rule of agency organization, procedure, or practice” (at 5 U.S.C. §553(b)(A)).  Score 1 for opponents of unions, although the Trump NLRB should have known that it could not skirt proper regulatory procedures the APA has required now for almost three quarters of a century.

In March 2020, the AFL-CIO (unsurprisingly) sued in federal District Court, claiming that the 2019 Rule ran afoul of the APA. Specifically, the union challenged five of the 2019 Rule’s provisions:

  • the reinstitution of pre-election hearings for litigating eligibility issues;
  • timing of the date of the election;
  • voter list timing;
  • election observer eligibility; and
  • timing of Regional Director certification of representatives.

On May 30, 2020  –  one day before the 2019 Rule was slated to take effect –  then D.C. federal District Court Judge Ketanji Brown Jackson (now a U.S. Supreme Court Justice) struck down the Rule. She ruled that the five challenged provisions of the Rule did not fall within the APA’s procedural exception. The remaining changes took effect as scheduled.

The (Trump) Board (unsurprisingly) appealed Judge Jackson’s decision.

D.C. Circuit Majority Upheld Two Provisions, But Struck Down the Remainder

The appellate court first ruled unanimously that the District Court had jurisdiction over the case. The lower court had jurisdiction because the statutory provision for direct review in federal appellate courts of NLRB orders regarding unfair labor practices does not apply to Rules that are exclusively concerned with representation elections, such as the 2019 Rule at issue.

Turning to the merits, the panel majority held that Judge Jackson erred in concluding that none of the five challenged provisions comes within the procedural exception. The court found that two of them – the reinstitution of pre-election hearings for litigating eligibility issues and the timing of the date of the election – did. Because those two provisions are rules of agency procedure, they were validly put into effect without a notice and comment period, the D.C. Circuit held.

However, the appellate court majority affirmed Judge Jackson’s invalidation of the rules regarding the eligible employee-voters list, the timeline for certification of election results, and election-observer eligibility. The majority affirmed Judge Jackson’s holding that these three provisions were substantive changes that did not fall within the APA’s procedural exception allowing the Board to by-pass formal APA rulemaking. This meant that the NLRB should have undertaken formal APA Rulemaking before issuing these three of its new Rules.

The appeals court panel majority also agreed with Judge Jackson’s rejection of the AFL-CIO’s assertion that the 2019 Rule was “arbitrary and capricious” as a whole. Because, as Justice Jackson explained, “‘the record establishes that the Board exercised its discretion with relevant information in hand and with eyes wide open concerning the impact of the significant changes that it was adopting,’” the 2019 Rule as a whole passed APA muster.

Finally, the appeals court majority agreed with the union’s assertion that a provision in the 2019 Rule regarding ballot impoundment procedures when a request for review is pending (one of the provisions that took effect as scheduled) was unlawful. Under that provision, if a party had filed a request for review of a direction of election within ten business days of its issuance by the Regional Director, and the Board then either granted the request or did not rule on it before the election occured, then “all ballots shall be impounded and remain unopened pending such ruling or decision.”  The D.C. Circuit ruled that the impoundment provision violated Section 3(b) of the National Labor Relations Act (29 U.S.C. § 153(b)) because it was a prohibited stay of action by Regional Directors.

Judge Rao’s Dissent Asserted Majority Used Obsolete Legal Standard

While Judge Rao concurred with the majority’s decision to reject the AFL-CIO’s challenge to the 2019 Rule as a whole, she dissented as to the majority’s invalidation of the specified provisions. Judge Rao stated that the majority applied an obsolete legal test in holding that three of the provisions in the 2019 Rule were substantive, and therefore did not fall under the APA’s exception to its otherwise required Notice and Comment procedures. The majority applied an outdated standard, Judge Rao opined,  based on whether a change had a “substantial impact” on the parties. In her view, the threshold question should be whether a Rule regulates primary or secondary conduct. “A rule is presumed procedural when it regulates only secondary conduct and the mere fact that such a rule impacts legal rights does not make it a substantive rule,” she wrote. All of the provisions at issue are “classic procedural rules” she stated, and thus, a Notice and Comment period was not necessary.

Moreover, Judge Rao wrote that the court should have upheld the “undisputedly procedural provision that requires ballots to be impounded pending review of an election by the Board because the provision is consistent with statutory requirements and reasonably explained.”

Editor’s Note: This case takes on significance beyond the NLRB issues presented in the case. This is because:

  • the D.C. Court of Appeals enjoys great deference from other federal appellate circuit courts of appeals as the federal appellate Court with the greatest knowledge and insight into federal administrative law issues with its home in the nation’s capitol and with jurisdiction over every federal Executive agency Rulemaking;
  • The Court’s majority opinion, written and signed by two Obama appointees took direct aim at and rebuked the analytical thinking of the lower federal District Court Judge in the case (former Judge Ketanji Brown Jackson) who now sits on the U.S. Supreme Court (as Justice Ketanji Brown Jackson). The opinion not only wounds her reversing her decision, but also by concluding she was wrong on both ends of her analysis (finding all five Trump changes in error and not finding a sixth change (NLRB Regional Director impoundment of union election ballots) in direct violation of the NLRB’s authorizing statute, the NLRA.) This amounts to a “slap in the face” of the newly sworn in Justice as she now begins to hear and write SCOTUS case decisions and with what ability to properly undertake “statutory construction” analyses advocates before the Court now do not know.
  • Adherence to APA formal Rulemaking requirements has emerged as a primary legal issue in the Biden Administration as it has repeatedly tried to end-run the APA. When challenged, as in the vaccination mandate cases we have previously reported on for the past two years, the Biden Administration has lost repeatedly and badly. And, with the divided Congress now lost to the President to endorse and implement his policy agenda, many political pundits have written that the Biden White House has left to it only to ramrod policy changes through the federal Executive Branch agencies the President controls. Indeed, in this issue today of the Week in Review, we report on not fewer than two OFCCP initiatives which contractor advocates have commented improperly seek to end-run APA formal Rulemaking (i.e., (a) OFCCP’s decision announced Friday to seek to sanction federal contractors with 500 punitive OFCCP audits of contractors that did not choose to “certify” their AAPs in “OFCCP’s Verification Portal” even though OFCCP launched that electronic portal without any APA Rulemaking to require such “certifications” (so sanctioned for not doing something not required); and (b) not undertaking APA Rulemaking before seeking to change many audit Scheduling Letter requirements and other unrelated substantive policy decisions (such as what is a “promotion?”).

In now seeking to proceed without proper legal authorization on these (and other) policy initiatives, OFCCP has “thrown down its gauntlet” and has now dared adversely impacted federal contractors to sue it to stop the agency’s forced policy and enforcement changes. Whether federal contractors, or one of them, will pick up OFCCP’s gauntlet and challenge the agency in the courts is now the open practical question.

Wednesday, January 18, 2023: OFCCP Published Proposal to Modify Its Complaint Intake Procedures

Proposal Would Adopt a Two-Step Process

logo for the Office of Federal Contract Compliance Programs (OFCCP)With the White House Office of Management and Budget’s (“OMB”) three-year Paperwork Reduction Act approval of OFCCP’s Complaint intake form (Form CC-4) soon coming to an end, OFCCP published a Notice in the Federal Register unveiling its proposed changes to its Complaint intake procedures. OFCCP also published a 13-page Supporting Statement with OMB explaining in more detail what it was proposing and why. The current OMB approval (Control Number: 1250-0002) for Form CC-4, “Complaint Involving Employment Discrimination by a Federal Contractor or Subcontractor” expires on May 31, 2023.

With individual Complaints increasing in number each year to OFCCP, the agency now wants to modify its Complaint intake procedures to mimic the EEOC’s two-step Charge intake process. (The OFCCP calls the claims rejected applicants and incumbent and former employees file with the agency “Complaints” while the EEOC calls them “Charges”).

Details: OFCCP’s proposal to OMB requests approval to adopt two information documents to help make OFCCP’s Complaint intake procedures more efficient: (1)  revisions to the existing Form CC-4, and (2) a new instrument to be called “Form CC-390 Pre-Complaint Inquiry for Employment Discrimination Involving a Federal Contractor or Subcontractor.” OFCCP’s proposed revisions to the existing Form CC-4 include formatting changes for consistency with the proposed Form CC-390 and clarifying revisions to portions of the CC-4 Form “to improve useability.” OFCCP detailed all of its proposed changes to Form CC-4 on pages 6-7 of its 13-page Supporting Statement to the OMB.

By implementing this new process, OFCCP will improve the efficiency of its complaint intake process, the agency asserted. The U.S. Equal Employment Opportunity Commission “has long utilized a two-step intake process,” OFCCP also noted. Note: OFCCP Director Jenny Yang, a former Commissioner and Chair of the EEOC during the second term Obama Administration that we enthusiastically wrote about here, is obviously quite knowledgeable about the EEOC complaint process.

Proposed Two-Step Process

OFCCP’s proposed two-step process would first require that applicants and employees of contractors, their authorized representatives, or third parties would submit to OFCCP a pre-complaint inquiry providing basic information on their allegation(s) and contact information (the proposed new Form CC-390). When OFCCP receives this form, the agency would then assess (1) whether the allegations are timely; (2) whether the inquiry falls under OFCCP’s jurisdiction; and (3) whether the inquiry should be investigated, closed, or referred to another agency.

If OFCCP determines it would likely investigate the matter, the agency will provide the inquiry submitter with information on filing a complaint (Form CC-4). If OFCCP determines that it would refer the matter to another agency, OFCCP would provide the submitter with information on the referral and send a copy of the pre-complaint inquiry to the other agency for review. If OFCCP were to determine that the allegations provided in the inquiry were untimely or were not within OFCCP’s authority, it proposes to contact the submitter to explain why OFCCP would likely not investigate the matter if he/she were to file a Complaint with OFCCP.

Note: OFCCP’s Complaint Rules, unlike those of the EEOC, require the OFCCP to investigate every Complaint filed with the agency. The two-step process, with its “Pre-Complaint intake processing form (the proposed new CC-390), would not trigger OFCCP’s mandatory investigation Rules with a Complainant’s filing of just a CC-390 form. This would be a boon to Contractors since the use of the CC-390 form should avoid many otherwise non-jurisdictional Complaint investigations.

The decision to file a Complaint with OFCCP lies with the submitter, the proposal noted. Once OFCCP receives a completed Complaint form, it will assign the matter for investigation, and OFCCP will notify the employer (contractor) of the Complaint and investigation. Under this proposed approach, OFCCP will not be required to provide notice to employers when an individual decides not to file a Complaint, according to OFCCP’s Supporting Statement (on page 5). “This will also benefit employers, so that they are not unnecessarily notified of a matter that the agency will not investigate,” OFCCP claims.

OFCCP Reported It Refers Most Complaints It Receives to the EEOC

In Fiscal Year 2022, OFCCP received 2,075 complaints, and assigned only 4.9% of those Complaints for investigation (only 102), the agency noted on page 4 of its Supporting Statement. Said another way, OFCCP had to sort through and dismiss almost 2,000 non-jurisdictional Complaints field with the OFCCP in FY 2022 alone. Just to benchmark that, assume only one hour of time to investigate and dismiss a non-jurisdictional Complaint and one readily sees that one Full-Time Equivalent OFCCP Compliance Officer is lost to investigations. (And one knows it would not take only one hour of OFCCP time to investigate and complete the reports and notification letters and allow for agency review of dismissal packages necessary to dismiss a non-jurisdictional Complaint.) OFCCP also reported in its Supporting Statement that it referred the majority of the Complaints it received to the EEOC, in accordance with its current MOU. Under its Complaint intake process, OFCCP must still notify an employer that it received a Complaint, even when the agency refers or closes the Complaint without an investigation. This requirement may increase the risk of retaliation or other negative treatment of the individual(s) who filed the Complaint, according to OFCCP. It also unnecessarily consumes OFCCP staff resources, as well as employer resources, for the agency to send a notification letter to all employers named in the complaint even when the agency does not plan to investigate the complaint. The proposed new two-step intake process is designed to reduce OFCCP’s time spent with these contractor notifications.

“OFCCP received 1,248 complaints in fiscal year FY 2020, 1,531 complaints in FY 2021, and 2,075 complaints in FY 2022. This results in an average of 1,618 complaints over the last three fiscal years,” the agency reported on page 10 of its Supporting Statement. “OFCCP assigned 83 complaints for investigation in FY 2020, 114 complaints for investigation in FY 2021, and 102 complaints for investigation in FY 2022,” the agency also noted. “This results in an average of 100 complaints assigned for investigation over the last three fiscal years,” OFCCP added.

Friday, January 20, 2023: OFCCP Published a New Corporate Scheduling Announcement List

Agency Targeted Contractors Who Did Not Certify in the AAP Portal

logo for the Office of Federal Contract Compliance Programs (OFCCP)OFCCP published its latest Corporate Scheduling Announcement List (CSAL) for Supply & Service contractors in the OFCCP FOIA Library. OFCCP also published a “methodology” memorandum explaining how OFCCP chose these 500 contractor establishments for audit from among the 20,000 or so federal contractors operating out of almost 200,000 establishments of potential interest to OFCCP to audit. Subscribers to OFCCP’s emailing list received a notification on Friday that the agency had published the new “FY 2023” CSAL list.

The new list identifies (only) 500 federal contractor establishments for eventually one of three kinds of OFCCP audit during the Fiscal Year (FY) 2023 scheduling cycle. (It appears that OFCCP sized its new audit target list to give it audit fuel sufficient to take it through the end of FY 2023 (ending September 30, 2023, and thus requiring the next CSAL at the end of summer 2023). OFCCP also updated its FAQs regarding CSALs.

Methodology Included Targeting Contractors Who Did Not Certify in the AAP Portal

Notably, OFCCP targeted contractors the agency believes were required to maintain Affirmative Action Programs (AAPs) but that did not complete their assertedly “mandatory” annual certification in the OFCCP Contractor Portal as of December 1, 2022:

“For this scheduling list, OFCCP selected federal contractors and subcontractors that are required to maintain an [AAP] but did not complete their mandatory annual certification in the OFCCP Contractor Portal as of December 1, 2022.” (See methodology memorandum explaining how the agency developed the FY 2023 CSAL).

Contractors have questioned the legality of audit selections based on OFCCP’s audit portal “certification” process accomplished without Administrative Procedure Act Rulemaking as we discussed at the bottom of a prior WIR story about the OFCCP “Certification Portal” here.

If a contractor believes it should not have been selected for evaluation for whatever reason, OFCCP invites the contractor to send an email to the OFCCP Scheduling Mailbox at ofccp-dpo-scheduling@dol.gov. While there is no requirement to do so, and no deadline to do so, OFCCP would prefer that contractors disputing their selection for audit to bubble that concern up earlier rather than later (and not wait until receipt of OFCCP’s later coming audit Scheduling Letter) given the agency’s need to settle its audit staffing assignments.

How Does CSAL Differ from Audit Scheduling Letter?

In contrast to the audit Scheduling Letter, the CSAL is a courtesy advance notification to an establishment selected for a Compliance Review (Establishment Review), Corporate Management Compliance Evaluation (CMCE), or Functional Affirmative Action Program (FAAP) Review. The CSAL is not required by law or OFCCP regulation. Rather OFCCP has published this list of upcoming OFCCP audits to later be scheduled to help contractor’s complete accurate and timely production of documents OFCCP will demand to access at the time an OFCCP office later shcedulues an audit. OFCCP begins its audit process by sending its standard audit Scheduling Letter and attached Itemized Listing appropriate for the audit in question (i.e., Compliance Review; FAAP; or CMCE: The Biden OFCCP has phased out use of Focused Review audits). These documents request the contractor to provide the OFCCP with its AAPs and specified supporting documents and records (detailed in the Itemized Listing) within 30 days of the contractor’s receipt of the letter.

Other Refinements

OFCCP further refined this CSAL by eliminating from its potential list of contractor and subcontractor establishments for audit those companies with fewer than 200 employees as taken from 2020 EEO‐1 filing data. Next, OFCCP eliminated from the resulting potential audit pool those contractors and subcontractors that certified in the OFCCP Contractor Portal as of December 1, 2022. For CMCE reviews, OFCCP set the minimum employee count to 1,000 at the corporate headquarters. For each parent company with at least one contract of $50,000 anywhere in the organization, all establishments that met the scheduling list’s criteria were included in the eligible audit pool for selection.

In addition, OFCCP cross-referenced all eligible establishments and functional units with the agency’s compliance management system to remove those that were: (1) currently under review; (2) currently in a monitoring period pursuant to a conciliation agreement; (3) currently within the (2-year) exemption period following a closed review; (4) currently pending scheduling for review from a prior scheduling list; or (5) had an active “separate facilities waiver.” OFCCP does not purge from its prior CSALs those establishments it has not yet scheduled for audit. Rather, OFCCP will audit to completion all contractor/subcontractor establishments previously identified on prior CSALs for audit even while OFCCP commences audits identified in the new CSAL.

For CMCE reviews, OFCCP set a limit of four compliance reviews per parent company. The agency selected the establishments and CMCEs with the highest employee counts in the jurisdiction of each OFCCP District Office. It selected up to five CMCE reviews for each of its six OFCCP Region offices. For FAAP reviews, OFCCP selected the four functional units with the highest employee count in each OFCCP Region. OFCCP assigned each establishment and FAAP location to OFCCP District and Regional offices based on the contractor’s establishment postal address (although it is not clear whether OFCCP took that address from the one reported in the contractor’s 2021 EEO-1 filing or from the address reported in OFCCP’s AAP Verification Portal).

Regional Distribution Methodology

OFCCP distributed Compliance Evaluations across OFCCP Regions and their District Offices based on available staff, measured in full-time equivalents, OFCCP explained in its “methodology” memorandum. In a further reflection of OFCCP’s unannounced policy determination to reduce the authority and importance of its slowly disappearing District Office structure and concentrate more responsibility and authority in its six Regional offices, OFCCP assigned to its Regional offices the responsibility for audits when a parent company had two or more establishments on OFCCP’s audit scheduling list. OFCCP sought to justify the reassignment of this decision moving away from its OFCCP District Offices, and the resulting concomitant dilution of the importance and relevance of OFCCP District Offices by suggesting that both the agency and the contractor could engage in those reviews in a more coordinated manner. OFCCP also pointed out that OFCCP Regions were at liberty to transfer audits across that Region’s District Offices or to other OFCCP Region Offices to balance the Region’s workload when appropriate.

Friday, January 20, 2023: DirectEmployers Association and 47 Others Filed Comments Re OFCCP’s Controversial Changes to its Supply & Service Audit Document Demands

Another Contractor hue and cry that OFCCP improperly seeks to adopt substantive and very costly new policies adversely impacting them by-passing APA Rulemaking

logo for the Office of Federal Contract Compliance Programs (OFCCP)DirectEmployers Association filed extensive and detailed Comments on behalf of its Member Companies you may find here in response to OFCCP’s proposal to the Office of Management and Budget (OMB) to greatly expand the agency’s audit Scheduling Letter demand for documents to Supply & Service federal contractors and subcontractors. We wrote about OFCCP’s controversial proposed expansion of its audit Scheduling Letter for Supply & Service contractors here. The first two pages of DE’s Comments filed Friday contain a Table of Contents to expedite your reading and location of issues of interest to you.

Background

DE distributed to all 1000+ DE Member companies a confidential written Survey of major issues raised in OFCCP’s proposals. A sign of the contractor communty’s great interest in OFCCP’s proposals became immediately apparent as DE soon received responses from more Member companies than in response to any prior OFCCP regulatory issue sampled through earlier DE Surveys on other OFCCP regulatory issues of concern to the federal contractor community.

While over 30 contractor groups filed Comments with OFCCP by the Friday January 20, 2023 OFCCP filing deadline, contractors did not coordinate their comments. (Note: About ten public interest groups filed public Comments with OMB supporting OFCCP’s proposed expansion of its audit Scheduling Letter. However, five of those letters, from major public advocacy groups, “wholeheartedly” supported OFCCP with identical copies of the same letter (not five advocacy groups signing on together in support of the same comment): a repetitive letter filed to lend artificial appearance of broad support for OFCCP’s proposals from different elements of the employee advocacy community as though OMB were going to count “Yea” and “Nay” comments.

Despite the lack of contractor coordination of their comments to OMB, federal contractor comments all largely identified common concerns, in different words and with differing proffered rationales, in asking OMB to NOT permit OFCCP to proceed with the agency’s proposals. OMB may stop the changes at the direction of President Biden and/or pursuant to OMB’s independent authority pursuant to the Paperwork Reduction Act to eliminate duplication of effort, limit burden on the regulated community, stop proposals not authorized by law, and undertake a cost-benefit analysis of the proposed costs verses the expected gains to the agency’s mission.

OMB Timeline

OMB’s approval for OFCCP’s current audit Scheduling Letter expires on April 30, 2023. Presumably, OMB will work to complete its review before that date. Alternatively, OMB would be forced to continue OFCCP’s existing audit Scheduling Letter approval beyond the April 30th date, typically approving extensions in 30-day increments.

Finding the Public Comments to OMB

You may find and read all 48 public Comments filed with OMB by clicking on this link. The website is not user friendly and will require numerous clicks before you can get to the Comment so here is a quick guide to navigate this website:

  • click on the tab in the middle of the website titled “Browse All Comments.”
  • that reveals a vertical list displaying down the middle of the page all comments, EACH under this label: “Comment on FR Doc # 2022-25311”. Click on that sentence for each comment you wish to review…but before you do, look to the right and notice the discrete “ID” number assigned to each comment (your only way to identify which of the 48 comments you are reading since the submitter’s name is not yet visible on the 48 comment index).
  • The assigned ID number looks like this: ID OFCCP-2022-0004-0005 (meaning this comment was the 5th comment filed.)
  • also, AFTER you click on the Comment of potential interest, look to the left, and scroll down to the following click bar, and click on it to learn the identity of the submitter: “Submitter info.” While some comments are on letterhead, and thus identify the submitter, that is not uniformly true.

What Contractors Told OMB

The Contractor community spoke as though with one voice in strong opposition to OFCCP’s proposed changes. Here was the contractor community’s list of five common concerns various contractors and their representatives identified to OFCCP in opposing the agency’s proposed new audit Scheduling Letter OFCCP:

  1. OFCCP’s proposed changes to its audit Scheduling Letter are not appropriate since OFCCP has failed or refused to first publish its proposed changes to its audit Scheduling Letter to OMB by way of a formal and required Administrative Procedure Act (“APA”) Rulemaking (including seeking public Notice and Comment from the regulated community);
  2. OFCCP’s cost estimates of both its current and proposed Supply & Service contractor audit Scheduling Letters are very flawed, substantially underestimate employer costs by well over 50x, and bear no resemblance to the reality of true contractor costs. OFCCP’s cost estimates substantially underestimate BOTH (a) contractor personnel hourly costs to respond to OFCCP’s audit Scheduling Letter demands, and (b) the number of contractor hours necessary to respond to OFCCP’s audit Scheduling Letters;
  3. OFCCP should expand the time it asks federal contractors under audit to respond to OFCCP’s audit Scheduling Letter. While most federal contractor comments to that effect did not specify the number of additional days OFCCP should increase the existing 30-day response window (from the date of the contractor’s receipt of OFCCP’s audit Scheduling Letter), DirectEmployers did so based on the empirical calculations of DE Member companies in existing audits and carefully projecting future time allocations necessary to budget and timely respond to OFCCP in the future if OMB were to approve OFCCP’s proposed changes:
    • 60 calendar days needed to respond if OMB rejects OFCCP’s proposed expanded document collection; and 90 days for contractors to respond should OMB greenlight all of OFCCP’s requested additional document and information collections.
  4. OFCCP lacks proper justification to revise its audit Scheduling Letter for Supply and Service contractors since it served OFCCP well in the Obama and Trump OFCCP’s to allow the agency to ferret out alleged contractor employment discrimination and achieve historically high backpay collections; and
  5. OMB should eliminate from OFCCP’s audit Scheduling Letter all duplicative document requests (such as those requests seeking EEO-1 and IPEDS information) already in the hands of the OFCCP and other federal government agencies.

In Brief

Thursday, January 19, 2023: U.S. Federal Trade Commission Published Previously Announced Proposal to Ban Worker Non-Compete Agreements

Official Seal for the United States Federal Trade Commission (FTC)The U.S. Federal Trade Commission (FTC) published in the Federal Register its previously-announced Notice of Proposed Rulemaking that would ban employers from implementing most worker non-compete agreements nationwide. The FTC first announced its proposal on January 5, 2023, and we discussed its provisions in a story earlier this month.

Comments are due on or before March 20, 2023. You may submit your comments here.

Monday, January 23, 2023: U.S. EEOC Changed Its Upcoming January 31 Public Meeting on Artificial Intelligence to Virtual Only Format

Criminal break-in of the EEOC’s HQ and resulting fires/sprinkler water damage compelled new meeting format

Official Seal of the EEOC featuring Bald Eagle and bannerBecause the U.S. Equal Employment Opportunity Commission’s (EEOC) building “is undergoing water remediation efforts” the agency changed the format of its previously announced January 31, 2023, public meeting. The meeting, which will cover: “Navigating Employment Discrimination in AI and Automated Systems: A New Civil Rights Frontier,” will now be a virtual meeting facilitated by a live-streamed videoconference, with an option for listen-only audio dial-in by telephone, according to an updated FR notice.

A January 19 tweet from Bloomberg Law added additional context:

Looking Ahead - Upcoming Reminders

Looking Ahead:
Upcoming Date Reminders

Wednesday, January 25, 2023 (2:00 – 3:00 pm ET): DE Webinar – “What to Expect from The Federal Employment Law Enforcement Agencies Given the New Year, Their New Budgets, and the New Congress” – Register here

Thursday, February 2, 2023: Deadline to submit initial comments on NLRB’s proposed changes to NLRA regulations (previous January 3 deadline extended) – https://www.regulations.gov/commenton/NLRB-2022-0002-0001

Thursday, February 9, 2023: Comments due on EEOC’s Draft Strategic Enforcement Plan – https://www.regulations.gov/commenton/EEOC-2022-0006-0001

Thursday, February 16, 2023: Deadline to submit reply comments in response to initial comments on NLRB’s proposed changes to NLRA regulations (previous January 17 deadline extended) – https://www.regulations.gov/commenton/NLRB-2022-0002-0001 

Tuesday, February 21, 2023: Comments due on WHD’s proposed information collection regarding the Inflation Reduction Act Wage Rates and Wage Determinations – Email: WHDPRAComments@dol.gov (identify OMB Control Number 1235-0034)

Tuesday, March 14, 2023: Deadline to submit comments on the proposed Joint-Rule of nine federal agencies on Partnerships with Faith-Based and Neighborhood Organizations – https://www.regulations.gov/commenton/VA-2023-VACO-0006-0001

Monday, March 20, 2023: Comments due on OFCCP’s proposed modifications to its complaint intake process – https://www.regulations.gov/commenton/OFCCP-2022-0005-0001

Monday, March 20, 2023: Deadline to submit comments on FTC proposal to ban employers from implementing most worker non-compete agreementshttps://www.regulations.gov/commenton/FTC-2023-0007-0001

Wednesday, April 12 – Friday, April 14, 2023: DEAMcon23 Chicago (Registrations open now; Agenda now available here!)

DEAMcon23: View Program & Register

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.

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John C. Fox
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