OFCCP Week In Review: February 13, 2023

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 J. Chambers and Cynthia L. Hackerott. In today’s edition, they discuss:

• U.S. DOL Submitted Proposed Rule to Clarify That WIOA’s Sex-Based Discrimination Prohibition Includes Sexual Orientation
• Know Your New Congressional Labor Committee Leaders
• U.S. Labor Secretary Walsh Expected to Resign to Take National Hockey League Players Association Director Position
• OFCCP Extends the Deadline for Federal Contractors to Further Correct OFCCP’s “Non-Objectors List” of Companies Whose EEO-1 Component 1 Data OFCCP Intends to Disclose to an FOIA Requestor
• In Brief
• Looking Ahead: Upcoming Date Reminders

January 11, 2023: U.S. DOL Submitted Proposed Rule to Clarify That WIOA’s Sex-Based Discrimination Prohibition Includes Sexual Orientation

Proposal Would Also Cover Abortion & Clarify Outreach Requirements to Include LGBTQ+ Status

The U.S. Department of Labor’s (DOL) Office of the Assistant Secretary for Administration and Management (OASAM) submitted to the White House Office of Management and Budget a Proposed Rule on “Revision of the Regulations Implementing Section 188 of the Workforce Innovation and Opportunity Act (WIOA) to Clarify Nondiscrimination and Equal Opportunity Requirements and Obligations Related to Sex” (RIN: 1291-AA44). The WIOA is a 2014 law designed to help job seekers access employment, education, training, and support services to succeed in the labor market. Section 188 of WIOA prohibits the exclusion of an individual from participation in, denial of the benefits of, discrimination in, or denial of employment in the administration of or in connection with any programs and activities funded or otherwise financially assisted in whole or in part under Title I of WIOA because of sex, among several other protected bases.

The upcoming proposal would update DOL regulations at 29 CFR Part 38 to clarify that discrimination on the basis of sex includes discrimination on the basis of sexual orientation, consistent with the Supreme Court’s 2020 decision in Bostock v. Clayton County (140 S. Ct. 1731) and subsequent legal developments. The DOL OASAM is behind on its December 2022 target date to publish this Proposed Rule.

In April 2022, we reported that the DOL OASAM published a “Notification of Interpretation” (NOI) stating that the agency – in light of Bostock – would interpret the WIOA to include discrimination on the basis of sexual orientation. The NOI also noted that the DOL would continue to enforce Section 188’s provisions on discrimination on the basis of sex which, since the law’s enactment, have included discrimination on the basis of gender identity and transgender status. We explained why, at the time, the agency did not think Proposed Rulemaking was necessary, and thus, issued a “Notice of Interpretation” rather than a “Notice of Proposed Rulemaking.”

Going beyond the scope of the NOI, the upcoming Proposed Rule would also clarify that discrimination on the basis of sex under WIOA Section 188 necessarily includes discrimination on the basis of sex characteristics. With regard to discrimination based on pregnancy, childbirth, and related conditions, another form of sex discrimination, the proposed regulations would clarify that termination of a pregnancy is an example of a medical condition related to pregnancy or childbirth. To make clear that the language of the regulations in no way excludes individuals based on sex or sex-related characteristics, the proposed rule would also (1) clarify that the requirements related to affirmative outreach include persons of diverse sexual orientations, gender identities, and sex characteristics; and (2) update the regulatory text to use gender-neutral language.

Monday, February 6, 2023: Know Your New Congressional Labor Committee Leaders

The Senate Health Education and Labor Committee (H.E.L.P.) is now under Democrat control given that the majority of the Senate, of course, is under Democrat control (with 48 Republicans, 47 Democrats, and 3 Independents who caucus with the Democrats). The H.E.L.P. Committee has also swelled to 21 Members (11 Democrats and 10 Republicans). Well-known former Presidential candidate and prominent Socialist Bernie Sanders (I-VT) has now become the Majority Committee Chairperson. As a senior Member of the Senate, Senator Sanders’ arrival at the Committee signals its importance to liberal Democrats. Dr. Bill Cassidy, M.D. (R-LA) is the senior U.S. Senator from Louisiana and is the H.E.L.P. Committee’s Ranking Member for the Minority (Republicans).

The U.S. House of Representatives’ Committee on Education and Workforce (CEW) is now under Republican control given that the House is under the control of Republicans (222-212, with 1 vacancy). Representative Virginia Foxx (R-NC) is the new Chairperson of the 45-Member Committee (25 Republicans and 20 Democrats reflecting the greater share of Republican control of the House by Republicans compared to the very close share of the Democrat control of the U.S. Senate). Representative Bobby Scott (D-VA) is the Ranking Member of the Minority (Democrats).

It is hard to imagine how the contrast in political beliefs between the Senate H.E.L.P. Chairperson and the House CEW Chairperson could not be any greater.  Both Chairs are tough and able advocates for their respective strongly-held political beliefs: two irresistible advocates meeting unmovable opponents. Don’t expect a lot of Labor bills in this 118th Congress to reach the President’s desk for signature.

Tuesday, February 7, 2023: U.S. Labor Secretary Walsh Expected to Resign to Take National Hockey League Players Association Director Position

Official Announcement Still Lacking as Walsh Continued Work as Secretary

Deputy Secretary Su Widely Viewed as Frontrunner to Replace Walsh

While no official announcement has yet been issued, a legion of press reports this past week stated that Marty Walsh will resign as Secretary of Labor to become the Executive Director of the National Hockey League Players’ Association (NHLPA). Even prior to this week’s reports, speculation had been brewing when press stories emerged that Walsh was a “top contender” for the NHLPA Director spot (for a couple of examples, see here and here). Should Walsh resign as anticipated, he would be the first Cabinet secretary to depart during Biden’s presidency. As of our WIR publication deadline, neither the White House, the Department of Labor, Secretary Walsh, nor the NHLPA has issued any statement confirming these reports. Indeed, Walsh actively engaged in his DOL work through the end of this past week.

How We Got Here

Joe Biden nominated Walsh, who at the time was mayor of Boston, for Labor Secretary on the first day of his presidential administration in 2021. The Senate confirmed the nomination that following March.

On Tuesday, prior to President Biden’s State of the Union (SOTU) address that evening, hockey news publication the “Daily Faceoff” reported that the NHL Players’ Association would formally install Secretary Walsh as its next Executive Director sometime in the days following the SOTU. That article was quickly picked up and cited by the Boston Globe, beginning an avalanche of similar reports which then dominated the news channels in the hours running up to the President’s big moment at the Capitol to deliver his SOTU address. According to Tuesday’s Daily Faceoff article, Walsh was waiting to make the move until after President Biden’s SOTU address despite distracting press attention away from Biden as The President prepared to deliver his major speech of the year to the American people. Also of note, Walsh suddenly did not attend this year’s SOTU because the White House unexpectedly and at the last minute designated Secretary Walsh as the ”Designated Survivor” for the SOTU.

The Daily Faceoff further reported that the NHLPA search committee presented Walsh as its top choice for the Executive Director position during an Executive Board meeting held in Miami on Friday, February 3^rd only four days before Biden’s SOTU. After Walsh introduced himself virtually via Zoom, the 32-member Executive Board approved Walsh to move to the next stage of the process, including negotiating an employment contract, according to the Daily Faceoff. Moreover, the Executive Board is expected to unanimously approve Walsh in an upcoming formal vote, according to Tuesday’s report.

The Boston Globe reported that Walsh would replace Donald Fehr, the former executive director of the Major League Baseball Players Association who assumed the same role at the NHLPA in December 2010. Fehr’s salary at the NHLPA is believed to be at least $3.5 million annually, apart from lavish perks. Walsh’s annual salary as Secretary of Labor is approximately $235,600.

Walsh Still on the Job at USDOL

As late as Friday, February 10, Walsh continued working as Secretary of Labor, issuing a statement condemning the December 2022 and January 2023 sentencings of six trade union leaders in Belarus. On Thursday, he went to Tulsa, Oklahoma to highlight “the need to promote economic justice for people in Black and other underserved communities,” according to a DOL press release. Walsh also spoke to the largest U.S. railroad operators urging them to reach an agreement to secure paid sick leave for workers, an issue that contributed to threats of a national railroad strike. President Biden signed legislation to block a strike over the leave issue that would have shut down the railroads nationwide this past December.

Also on Thursday, White House Press Secretary Karine Jean-Pierre told reporters, “[I am] not going to get ahead of any personnel announcements from here. As far as we know, as far as I know, as far as you all know, Marty Walsh is still the Secretary of Labor.”

Deputy Secretary of Labor Julie Su Most Likely Replacement

Should Walsh resign as anticipated, Deputy Secretary of Labor Julie Su will take over as Acting Secretary, until the President nominates, and the Senate confirms, a new Secretary. Before joining the Biden administration in July 2021, Su had led the California Labor and Workforce Development Agency amid great controversy over her administration of California’s Unemployment Insurance fund which lost an estimated $20 Billion in unemployment money stolen by foreign criminals and by prisoners sitting in prisons in California.

Deputy Secretary Su is widely considered the front-runner to replace Walsh as Labor Secretary, although other candidates are reportedly in the mix.

Tuesday, February 7, 2023: OFCCP Extends the Deadline for Federal Contractors to Further Correct OFCCP’s “Non-Objectors List” of Companies Whose EEO-1 Component 1 Data OFCCP Intends to Disclose to an FOIA Requestor

OFCCP Will Now Credit Certain Late Objections

House EWC Chair Concerned Contractors Did Not Receive Sufficient Notice

OFCCP published two updates to its “OFCCP Objector Response Portal” this past week. In its first update on February 7, 2021, to its “OFCCP Objector Response Portal, OFCCP extended to Friday, February 17, 2023, its previous February 7, 2023, deadline for contractors to inform the agency that they are incorrectly included on the agency’s “non-objectors list.”

Background: OFCCP intends to release the 2016-2020 EEO-1 Component 1 Type 2 (consolidated) Survey Reports as to all companies on the “non-objectors list” in response to a reporter’s Freedom of Information Act (FOIA) request for the data. We explained last week that, as a quality control check, OFCCP had published an email announcement on February 2, 2023, extending a final opportunity for federal contractors – which had filed a previous objection based on one or more of the following three grounds – to review OFCCP’s proposed disclosure list and alert OFCCP to any errors if they:

1. had previously submitted an objection via the agency’s FOIA objection portal, or
2. were not covered federal Government contractors subject to OFCCP’s jurisdiction; or
3. were part of a collection of related companies not all of which were listed on the list of objecting companies.

Also New: OFCCP Will Now Consider Other Grounds for Objection

Then, in a further update OFCCP published on February 10, OFCCP announced its willingness to listen to new contractor objections to release if they had a good excuse explaining why they had not previously objected:

“If you provide an objection to disclosure on any other grounds [than the three set out above], it must include an explanation as to why you did not object in response to previous notices that OFCCP has issued, and why there is good cause for OFCCP to accept the objection at this point. If OFCCP determines that there is good cause for why the objection was not filed in response to the previous notices provided by the agency, OFCCP may, at its discretion, consider the substance of the late-filed objection.” (Bold in original)

House EWC Chair Concerned Some Contractors Did Not Receive Sufficient Notice

Also, on February 10, House Education and the Workforce Committee Chairwoman Virginia Foxx (R-NC) sent a letter to Director Jenny Yang complaining that – even with this latest extension – the agency has not allowed contractors, especially smaller employers, sufficient time to object. In the three-page letter, Foxx also wrote:

“It further appears that many employers were not aware of the pending FOIA request at OFCCP. The agency must do a much better job of informing federal contractors, especially smaller employers, about their rights and obligations. I am also aware that OFCCP has not provided information to all relevant employers about what data will be disclosed in response to the FOIA request. These employers could not determine whether to submit objections because they did not know what information OFCCP would turn over. … For these reasons, I request that OFCCP re-open the period for employers to submit objections to the Type 2 EEO-1 data being released for 60 days.”

How We Got Here

In an OFCCP February 2, 2023 email announcement, OFCCP reported that it had  “compiled a list of all entities that, according to the agency’s records, were federal contractors that submitted Component 1, Type 2 (consolidated) EEO-1 data between 2016-2020 and have not submitted objections to the release of this data” by OFCCP’s October 19, 2022 deadline (OFCCP’s original objection date) (emphasis added).

In Brief

Monday, February 6, 2023: USCIS Emailed Notice of Redesigns to Permanent Resident Cards & Employment Authorization Documents

The U.S. Citizenship and Immigration Services (USCIS) announced new designs for tamper-resistant Form I‑551, Permanent Resident Cards (also known as Green Cards), and Form I‑766, Employment Authorization Documents (EADs). USCIS began issuing the redesigned cards on January 30, 2023, and the E-Verify program sent a corresponding e-mail to stakeholders on February 6. To see examples of the new designs, go to the Form I-9 Acceptable Documents page on the “I-9 Central” webpage and Section 12.1 of the Handbook for Employers (M-274). While some Permanent Resident Cards and EADs issued after January 30 may still display the existing design format, both versions of the cards are acceptable for Form I‑9, Employment Eligibility Verification, and E‑Verify. Moreover, previously issued cards remain valid until their expiration date (unless otherwise noted). Also, some older Permanent Resident Cards do not have an expiration date. These older Permanent Resident Cards without an expiration date remain valid.

USCIS also extended the validity of Permanent Resident Cards (PRC) for petitioners who properly file Form I-751, Petition to Remove Conditions on Residence, or Form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status for 48 months beyond the card’s expiration date. See here for more information.

Friday, February 10, 2023: President Biden Formally Announced The End to the COVID-19 National Emergency to Occur on May 11

The Covid-19 National Emergency – which former President Trump declared on March 13, 2020, via Proclamation 9994 and began on March 1, 2020 – must continue in effect beyond March 1, 2023, President Biden announced. However, the President anticipates terminating this national emergency declaration on May 11, 2023. He also sent corresponding Letters to the Speaker of the House of Representatives and the President of the Senate.

“Today, we are in a different phase of the response to that pandemic than we were in March of 2020, and my Administration is planning for an end to the national emergency, but an orderly transition is critical to the health and safety of the Nation,” President Biden explained. 

Looking Ahead:
Upcoming Date Reminders

December 2022: OFCCP’s (now overdue) target date for its Final Rule on Rescinding Trump-era Religious Exemption (RIN: 1250-AA09)

December 2022: U.S. DOL WHD’s (now overdue) target date to publish a Notice of Proposed Rulemaking to Analyze Public Comments on its proposed rule regarding Nondisplacement of Qualified Workers Under Service Contracts (RIN: 1235-AA42)

December 2022: U.S. OSHA’s (now overdue) target date to publish its Final Rule on Occupational Exposure to COVID-19 in Healthcare Settings (RIN: 1218-AD36) (OSHA submitted this Final Rule to OMB on December 7, 2022)

December 2022: U.S. DOL’s OASAM’s (now overdue) target date to publish Proposed Rule on “Revision of the Regulations Implementing Section 188 of the Workforce Innovation and Opportunity Act (WIOA) to Clarify Nondiscrimination and Equal Opportunity Requirements and Obligations Related to Sex” (RIN: 1291-AA44)

February 2023: U.S. DOL WHD’s target date for its Final Rule on Updating the Davis-Bacon and Related Acts Regulations (RIN: 1235-AA40)

Thursday, February 16, 2023: FTC public forum on its proposal to ban employers from implementing most worker non-compete agreements – https://www.ftc.gov/news-events/events/2023/02/ftc-forum-examining-proposed-rule-ban-noncompete-clauses

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 

Thursday, February 16, 2023: DE Masterclass Employment Law Roundtable | The Gig Economy: Embracing the Legal Requirements for Use of Independent Contractors – Register here

Friday, February 17, 2023: Deadline for contractors to inform OFCCP that they are incorrectly included on the agency’s “non-objectors list” as to a reporter’s Freedom of Information Act (FOIA) request for EEO-1 consolidated Component 1 Survey data (previous February 7 deadline extended) – https://www.dol.gov/agencies/ofccp/submitter-notice-response-portal

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)

March 2023: OFCCP’s target date for its Notice of Proposed Rulemaking to Require Reporting of Subcontractors (RIN: 1250-AA15)

March 2023: OFCCP’s target date for its Final Rule on Pre-Enforcement Notice & Conciliation Procedures (RIN: 1250-AA14)

March 2023: OFCCP’s target date for its Final Rule on “Technical Amendments” to Update Jurisdictional Thresholds & Remove Gender Assumptive Pronouns (RIN: 1250-AA16)

Tuesday, March 14, 2023: Deadline to submit comments on nine federal agencies’ joint proposed rule 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 agreements – https://www.regulations.gov/commenton/FTC-2023-0007-0001

April 2023: OFCCP’s target date for its Notice of Proposed Rulemaking to “Modernize” Supply & Service Contractor Regulations (RIN: 1250-AA13)

Wednesday, April 12, 2023: Comments due on the Office of Management & Budget’s “Initial Proposals for Updating Race and Ethnicity Statistical Standards” – https://www.regulations.gov/commenton/OMB-2023-0001-0001

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

Sunday, April 30, 2023: Deadline to apply for 2023 HIRE Vets Medallion Award Program – https://www.hirevets.gov/

May 2023: U.S. DOL WHD’s target date for its Notice of Proposed Rulemaking on Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees (RIN: 1235-AA39)

May 2023: U.S. DOL WHD’s target date for its Final Rule on Employee or Independent Contractor Classification Under the Fair Labor Standards Act (RIN: 1235-AA43)

August 2023: U.S. NLRB’s target date for its Final Rule on Standard for Determining Joint-Employer Status (under the NLRA) (RIN: 3142-AA21)

August 2023: U.S. NLRB’s target date for its Final Election Protection Rule (RIN: 3142-AA22)

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.