OFCCP Week In Review, authored by John C. Fox, Candee J. Chambers, and Cynthia L. HackerottThe 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:

DEAMcon23 Recap – Day Three

The finale of our three-part “Special Edition” of the Week In Review reporting the 27 different presentations from 50 different presenters at DirectEmpoyers’ annual meeting known as DEAMcon23, is available today at this link. This DEAMcon turned out, again, to be a special moment, when time seemed to stop, the pressures of the world stood back, and we learned together in a convivial atmosphere, unified by hope and positive attitudes looking forward to change. We met in Chicago downtown at the Renaissance for three days of education, camaraderie, reflection, and fun. Oh, and GREAT food at the conference and in the streets beyond the hotel. We laughed much, we learned more, renewed old relationships, and built long-lasting new ones. For those of you who could not attend, we have written this final segment of our three-part “Special Edition” series hoping to make you feel you were in the room hearing the presentation “live.”

OFCCP Week in Review logo with text,

Wednesday, May 10, 2023: U.S. Office of Personnel Management Announced Proposed Rule on Pay Equity for Federal Workers

Proposal Would Ban Consideration of Job Applicant’s Prior Salary in Hiring & Setting Pay

Official logo for the Office of Personnel Management (OPM)

The U.S. Office of Personnel Management (“OPM”) announced a Proposed Rule on pay equity for federal workers that would prohibit the use of a job applicant’s prior salary history when making hiring decisions and setting pay for federal employees. A day after the announcement, the OPM published the proposal in the Federal Register. Public comments on it are due by Monday, June 12, 2023, and may be submitted here or here.

“Currently, 21 states have laws or executive orders that address employers’ use of an applicant’s salary history, including directives that, like OPM’s proposed regulations, prohibit employers from relying on a job applicant’s salary history in setting pay,” the OPM stated in its announcement. For a discussion on what private employers should consider given the current legal patchwork, see John Fox’s Bonus Blog: “Prior Pay History? Still a “Jump Ball”: Law Continues to Vary by Location and Protected Status.” See also, the U.S. Department of Labor’s Women’s Bureau’s March 2023 brief entitled “Equal Pay in the United States: Salary History Bans.”

Federal contractors should also note that on March 15, 2022, President Biden issued Executive Order 14069 on “Advancing Economy, Efficiency, and Effectiveness in Federal Contracting by Promoting Pay Equity and Transparency,” which directs the Federal Acquisition Regulatory Council, in consultation with the Secretary of Labor, to consider issuing proposed regulations to limit or prohibit federal contractors’ and subcontractors’ use of an applicant’s or employee’s prior salary or compensation history.

Thursday, May 11, 2023: USDOL ODEP Announced Themes for 2023 Disability Awareness Month & 50th Anniversary of Rehab Act

“Advancing Access and Equity” will be the theme for National Disability Employment Awareness Month (“NDEAM”) in October 2023, the U.S. Department of Labor’s Office of Disability Employment Policy (“ODEP”) announced. ODEP leads the Labor Department’s annual observance of NDEAM, which acknowledges the contributions to the nation’s economy made by workers with disabilities, currently and historically. The commemoration also showcases supportive and inclusive policies and practices benefiting workers and employers.

ODEP also announced that it will use “Advancing Access and Equity: Then, Now and Next” to celebrate the passage of the Rehabilitation Act a half-century ago and its importance in prohibiting discrimination based on disability in employment by federal agencies, federal contractors, and recipients of federal funds, and in the delivery of federally funded programs and activities. “[F]rom now through October, we will be exploring the [A]ct’s impact on everything from employment to community living to non-discrimination to accessible technology,” said Assistant Secretary for Disability Employment Policy Taryn M. Williams.

In Brief

Tuesday, May 9, 2023: President Biden Issued Executive Order Ending COVID-19 Vaccine Requirement for Federal Contractors

New Executive Order Rescinded Two Previous Ones

Official Seal of the President of the United StatesAs expected, President Biden issued an Executive Order (E.O.) rescinding the vaccination requirement for federal employees and COVID-19 safety protocols for federal contractors. The new E.O. 14099 (“Moving Beyond Covid-19 Vaccination Requirements for Federal Workers”) revoked both E.O. 14042 (“Ensuring Adequate COVID Safety Protocols for Federal Contractors) and E.O. 14043 (“Requiring Coronavirus Disease 2019 Vaccination for Federal Employees”). We reported last week, that the Biden Administration announced its plans to end the COVID-19 vaccine requirements for federal contractors, federal employees, and international air travelers to be effective at the end of the day on May 11, the same day that the COVID-19 public health emergency ended.In accordance with E.O. 14099, the Safer Federal Workforce Task Force updated its “For Federal Contractors” webpage to state:

“Effective May 12, 2023, all prior guidance from the Safer Federal Workforce Task Force implementing the requirements of Executive Order 14042 has also been revoked. Pursuant to the Executive Order, the Federal Government will not take any steps to require covered contractors and subcontractors to come into compliance with previously issued Task Force guidance implementing Executive Order 14042 and will not enforce any existing contract clauses implementing Executive Order 14042. Agencies must promptly rescind any deviations, policies, or other guidance premised on Executive Order 14042, and the FAR Council has revoked its September 30, 2021 guidance regarding deviations to the FAR to implement Executive Order 14042.”

Looking Ahead - Upcoming Reminders

Looking Ahead:
Upcoming Date Reminders

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 (now overdue) target date for its Final Rule on Updating the Davis-Bacon and Related Acts Regulations (RIN: 1235-AA40)

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

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

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

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

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)

Wednesday, May 17, 2023: Deadline to submit comments on OFCCP’s Modifications to Its Proposed Changes to Its Supply & Service Contractor Scheduling Letter & Itemized Listing – https://www.regulations.gov/commenton/DOL_FRDOC_0001-2080

Thursday, May 18, 2023 (at 2 pm ET): DE Masterclass Employment Law Roundtable | Battle of the ATS’: What Do You Love, What Did You Pass On, and Why? – Register here

Tuesday, May 30, 2023: Public comment deadline on OFCCP’s proposal to modify its complaint intake procedureshttps://www.regulations.gov/commenton/DOL_FRDOC_0001-2088

Thursday, June 1, 2023: Deadline to submit comments on U.S. EEOC’s proposal to eliminate counting employees to determine filing “type” for EEO-1 Survey Component 1 – https://www.regulations.gov/commenton/EEOC_FRDOC_0001-0310

Tuesday, June 6, 2023: Comments due on Proposed OMB Circular No. A-4, “Regulatory Analysis”https://www.regulations.gov/commenton/OMB_FRDOC_0001-0337

Tuesday, June 6, 2023: Deadline for comments due on proposed revisions to OMB Circular A-94 (Guidelines and Discount Rates for Benefit-Cost Analysis of Federal Programs)https://www.regulations.gov/commenton/OMB-2023-0011-0001

Tuesday, June 6, 2023: Comments due on OMB’s implementation of Section 2(e) of the “Modernizing Regulatory Review” E.O.https://www.regulations.gov/commenton/OMB_FRDOC_0001-0333

Monday, June 12, 2023: Public comments due on the U.S. Office of Personnel Management’s Proposed Rule on “Advancing Pay Equity in Governmentwide Pay Systems”https://www.regulations.gov/commenton/OPM_FRDOC_0001-2514

Thursday, June 29, 2023: Deadline for covered federal contractors and subcontractors to certify, via OFCCP’s online Contractor Portal, that they have developed and maintained affirmative action programs for each establishment or functional unit – https://www.dol.gov/newsroom/releases/ofccp/ofccp20230320

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)

Friday, August 11, 2023: Deadline for Presenter Proposal Submissions for DEAMCon 2024 – https://deamcon.org/call-for-presenters/

DEAMcon24 Call for Presenters – April 3-5, 2024 | Submissions due by August 11, 2023

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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