Monday, June 5, 2023: Based on Either An Unannounced OFCCP Policy Change Or Error, OFCCP Published A CSAL Identifying 250 “Construction Contractors” For Audit

logo for the Office of Federal Contract Compliance Programs (OFCCP)

Via an email to stakeholders, OFCCP announced the publication of its latest Corporate Scheduling Announcement List (CSAL). This one is assertedly only for “construction contractors.” OFCCP reports that its new CSAL lists the locations of 250 assertedly federal “construction” contractors and subcontractors AND federally assisted “construction” contractors, and subcontractors that OFCCP intends in the future to schedule for audit.

The link to the spreadsheet with this list is in OFCCP’s FOIA Library on the Corporate Scheduling Announcement Lists webpage. (For more details on CSALs, see our related story about OFCCP’s January 2023 CSAL release for Supply & Service Contractors.) OFCCP also published the methodology for developing this list. [Note: OFCCP has the methodologies for various CSALs going back to 2019 available here].

Six Month Runway? Given the small size of the CSAL (only 250 contractor locations), it appears OFCCP has identified only enough audits of construction contractors to fuel its audit needs for the next approximately five to six months to just past the beginning of FY 2024 (which starts October 1, 2023).

Unnanounced OFCCP Policy Change or Error? Among OFCCP’s selection of purported covered federal Government “Construction Contractors” it intends to seek to audit are Supply and Service Contractors undertaking construction contracts. However, both Executive Order 11246 and its implementing regulations provide authority for OFCCP to audit a company based only on the type of contractor it is: i.e., “Construction Contractor” or “Supply and Service Contractor” (i.e., non-construction contractor) and NOT based on the type of federal contract a contractor signs. See  41 CFR Section-60-1.20.

So, you start by first determining what kind of company the contractor is to determine the nature of the affirmative action obligations that contractor owes under OFCCP’s Rules. OFCCP’s e-mail Notice, linked above, in fact properly states that policy:

“Today, the Office of Federal Contract Compliance Programs published the latest Corporate Scheduling Announcement List (CSAL) for construction contractors, which lists 250 federal contractors, federally assisted contractors and federally assisted subcontractors.”

However, OFCCP’s Methodology statement (linked above) reported quite to the contrary that the agency did NOT select audit targets from a list of “construction contractors” but rather from a list of “construction contracts”:

“OFCCP developed this list by initially downloading federal construction contracts valued over $10,000 from the USAspending database.”

However, a Supply and Service contractor that signs a covered federal construction contract does not become transformed into a construction contractor. Rather, see OFCCP’s Construction Contractor Rules at 41 CFR Section 60-4.1:

“The regulations in this part are applicable to all of a construction contractor’s or subcontractor’s (emphasis added) construction employees who are engaged in on site construction including those construction employees who work on a non-Federal or nonfederally assisted construction site.”

Then see 41 CFR Section 60-1.3  which defines a “Construction Contractor” to be one which improves real property:

Construction work means the construction, rehabilitation, alteration, conversion, extension, demolition or repair of buildings, highways, or other changes or improvements to real property, including facilities providing utility services. The term also includes the supervision, inspection, and other onsite functions incidental to the actual construction.”

Note: It is not uncommon for Supply and Service companies to have operating groups within them dedicated to construction work (i.e., most electric and gas companies; telephone companies; internet service providers laying cables and building cell phone towers; building management companies with construction maintenance departments; large commercial office buildings with construction maintenance departments; department stores with construction departments to build and install ever-changing product displays and room sets; etc.).

So, again, one starts by understanding whether the at-issue contractor is a “Supply and Service Contractor” or a “Construction Contractor.” OFCCP’s Rules do not permit or require contractors to be both at once or for OFCCP to assign the characterization by reference to the nature of any federal contract a company has signed.

What Now? The agency instructed contractors that believe they should not be selected for evaluation, to send an email to its audit Scheduling Mailbox at

OFCCP’s email also reminded construction contractors that in August 2022, it had launched its Notification of Construction Contract Award Portal (“NCAP”) (see our story here). OFCCP maintains that the NCAP is intended to “modernize how the agency receives required notices about construction contract and subcontract awards.”

  FY 2007 FY 2008 FY 2009 FY 2010 FY 2011 FY 2012 FY 2013 FY 2014 FY 2015 FY 2016 FY 2017 FY 2018 FY 2019 FY 2020 FY 2021 FY 2022*
Receipts 2,880 3,273 3,386 3,790 4,151 3,811 3,721 3,549 3,502 3,825 3,436 2,859 2,725 2,404 2,111 13,814

Looking at the EEOC’s entire chart breaking down the types of discrimination charges, it is clear that no other charge category had such a notable change.

Note that on May 18, 2023, Republicans on the House Education and the Workforce Committee sent a letter to EEOC Chair Charlotte Burrows complaining that the EEOC had not, at that point, posted breakdowns in the types of discrimination charges it received in FY 2022. They asserted that the EEOC normally posts these breakdowns for the previous FY by January of the current FY. Therefore, if the Republicans are correct, this information is over five months late from the EEOC’s previous practice and without explanation.

Wednesday, June 7, 2023: U.S. Labor Secretary Su Confirmation Drama Entered Final Round Amid Shifting Political Sands in Senate as White House Hatches New Rescue Plan

Major USDOL Policy Initiatives on Hold Pending Su’s Struggle

Official seal for the U.S. House of Representatives and the Committee on Education & the Workforce (EW Committee)The debate over the nomination of Julie Su to be U.S. Secretary of Labor continued to play out as she testified at a hearing before the House Committee on Education and the Workforce (“EW Committee”). Similar to the U.S. Senate Health, Education, Labor, and Pensions (“HELP”) Committee hearing on her nomination in April, the almost 4-hour EW Committee hearing was a display of the ongoing partisan squabble over Ms. Su’s suitability for the position and the U.S. Department of Labor’s (“DOL”) policies and enforcement activities. Ms. Su has been serving as the Acting Secretary of Labor since former Labor Secretary Marty Walsh left the Department of Labor in March.

Committee Chair Virginia Foxx (R-NC) maintained that the hearing was not about Ms. Su or her pending nomination (upon which the House of Representatives has no vote), but rather “about assessing the budget proposal for the [DOL] and the Department’s performance and adherence to its statutory mandate.” Nevertheless, during the hearing, House Republicans criticized Acting Secretary Su’s track record as U.S. Deputy Secretary of Labor as well as her record when she headed the state of California’s Labor Department. In contrast, House Democrats sang her praises over this same background. While the Democrat Committee members’ questions were largely focused on workforce needs in light of recently passed legislation, such as the Infrastructure and Jobs Act, Inflation Reduction Act, and the CHIPS and Science Act, Republicans focused on the issues set forth below.

Subpoena Threat

At the outset, Chair Foxx accused Su of trying to back out at the last minute. “[O]n late Friday [June 2nd] evening – following the Committee’s public posting of the hearing a week ago – [Ms. Su’s] staff told [the Committee] that [she was] ‘no longer able to make June 7th work,’” Foxx said. Moreover, Foxx asserted that Acting Secretary Su only appeared because Foxx threatened to issue a subpoena to compel her attendance. “I am unaware of this Committee ever needing to consider such action for a department’s annual hearing until now,” Foxx said.

In response, Acting Secretary Su said: “I am very happy to be here today to testify. I understand that our teams worked together to find the date.”

Su Said No Joint Employer Rule on DOL Regulatory Agenda

In September 2022, the National Labor Relations Board (“NLRB”)  issued a proposed rule expanding the definition of “joint employer” for purposes of liability under the National Labor Relations Act (as discussed previously here). The comment period for the proposal ended on November 21, 2022. The NLRB’s target date for its Final Rule is August 2023. In addition, the Federal Trade Commission recently sought public input on the joint employer issue. (See our story here about how these two agencies are working in concert on various “gig’ economy issues.)

With these actions in mind, the Republican Representatives tried to get Acting Secretary Su to confirm that she would not issue a joint employer regulatory proposal. In response, Secretary Su kept stating that such a Proposed Rule is not on the DOL’s Regulatory Agenda. One example is this exchange with Representative Roger Marshall (R-KS). Another example, focusing on franchising, is this exchange with Representative John James (R-MI).

Pending DOL Independent Contractor Rule

In October 2022, the DOL’s Wage and Hour Division (WHD) published a Proposed Rule that would apply a six-part “Totality of Circumstances” Test to determine whether a “worker” (neutral term) is an “employee” or an “ independent contractor” under the Fair Labor Standards Act (“FLSA”). We discussed this proposal in detail here. The comment period on the proposal closed on December 13, 2022. The WHD is behind on its goal of publishing a Final Rule in May 2023.

During her time as the California Labor Secretary, Ms. Su aggressively sought to enforce California’s AB5 law reducing the ability of businesses to identify workers as independent contractors. That law applies the “ABC test” to determine whether an individual is properly classified as an employee or an independent contractor. The ABC test is a significantly stricter standard than that currently applied under the FLSA.

At the hearing, Acting Secretary Su maintained that California’s ABC test is not part of DOL’s pending independent contractor rule and that the DOL has no intention to seek to implement the “ABC” test. Moreover, in his opening remarks, EW Committee Ranking Member Bobby Scott (D-VA) stated: “Do not be confused by Republican attempts to conflate California’s state law with federal regulation. The proposed regulation does not implement California’s [AB5 law ….] In fact, the Biden [A]dministration clearly noted that it is legally constrained from adopting the ABC test.”  Mark Takano (D-CA) echoed these points in his questioning of Ms. Su.

Nevertheless, Republicans pressed this issue with Ms. Su, as shown in this exchange with Representative Kevin Kiley (R-CA). Representative Kiley asserted that Acting Secretary Su actively supports a national version of AB5 and asked her whether she believes AB5 is a good law.

“AB5 is not federal law. It would only be federal law if Congress decides that it should be,” Acting Secretary Su said, skirting the direct question. “I have not called for that at the federal level. In fact, I have explicitly, during my tenure as Deputy Secretary of Labor, when we created the proposed rule about independent contractors, I explicitly said we do not adopt an ABC test and, in fact, we cannot adopt an ABC test.”

Apprenticeship Programs

In September 2022, the DOL’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 (see our story here). “In 2023 so far, 90,698 new apprenticeships were created,” noted Representative Pramila Jayapal (D-WA).

Republicans favoring IRAPs have argued that they would have streamlined the process for more companies to create apprenticeships. “Instead of making the workforce system more responsive to employer needs, the Biden administration has doubled down on burdensome registered apprenticeships while shuttering the Industry-Recognized Apprenticeship Program,” Committee Chair Foxx asserted in her opening remarks.

However, Representative Donald Norcross (D-NJ), claimed that while employers can create their own IRAPs, they want access to federal funding without adhering to federal regulations to ensure quality. “That’s the big difference. We want your money, but we don’t want any kinds of regulations on it,” he said.

When asked by Representative Lloyd Smucker (R-PA) why she did not support IRAPs), Acting Secretary Su did not specifically address the question, but she asserted that the DOL has helped to expand and has made it more simple for employers to create registered apprenticeships. “It used to take months for an employer who wanted to do one, to do one. It’s now a matter of days,” she reported.

Project Labor Agreements

In August 2022, the FAR Council 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 (see our story here). The comment period on that proposal closed on October 18, 2022, with the public submitting over 8,334 comments. The FAR Council is behind on its March 2023 goal for publishing a Final Rule.

In this exchange, Representative Smucker argued that PLAs disadvantage non-union construction workers and hurt taxpayers, but Acting Secretary Su disagreed.

Migrant Child Labor

Republicans on the Committee questioned Ms. Su over the DOL’s response to reports of rampant child labor violations involving migrant children, suggesting that the Department was not doing enough to address the issue. Two examples are these exchanges with Representative Glenn Grothman (R-WI) and Representative Jim Banks (R-IN). In response, Su noted the DOL’s work with the White House Inter-Agency Taskforce created to address this problem. She also said that several DOL investigations and enforcement actions have focused on it.

The day after the hearing, Ranking Member Scott and Workforce Protections Subcommittee Ranking Member Alma Adams (D-NC) issued a press release stating that despite raising concerns about rising child labor violations, Committee Republicans have yet to hold a hearing on this issue. In the press release, the Congresspersons noted a letter they sent on Tuesday, June 6, urging Committee Chair Foxx to hold such a hearing.

White House Standing Behind Pick, “Pulling Out All the Stops”

Earlier in the week, on Monday, June 5, White House Press Secretary Karine Jean-Pierre confirmed to reporters that President Biden still stands behind his pick. The President “has confidence that [Ms. Su] will get through” the Senate confirmation process, the Press Secretary said. “We’re going to do everything that we can to make sure that she actually becomes Secretary,” she added.

Moreover, Semafor reported on Wednesday that the White House is “pulling out all the stops to get Julie Su confirmed.” According to the report:

“A White House official told Semafor that senior officials join a nightly ‘war room’ call on her nomination (a call that continued even through the debt limit negotiations). President Biden’s [Chief of Staff] Jeff Zients and [Legislative Director] Louisa Terrell have been speaking regularly with Senate Majority Leader Chuck Schumer and other key senators, the official said.

Capitol Hill allies are engaged, too: the leaders and members of four caucuses, including the Congressional Asian Pacific American Caucus and Congressional Black Caucus, are writing to Senate leaders today urging her quick confirmation in a letter shared exclusively with Semafor.”

On top of all the above, Axios reported on Wednesday that Chief of Staff Zients has been phoning members of President Biden’s Cabinet to tell them that if they plan to leave the administration they should do so in the “next few months.” This action indicates that the Biden Administration wants to avoid any major confirmation battles for Cabinet posts in an election year, the report surmised.

What is Stopping the Su Confirmation? 49 Republicans, at least two Democrats and two Independents who caucus with the Democrats. Secretary Su needs to get at least 50 Senate votes to confirm her nomination to then force a tie-breaking vote in her favor by Vice President Kamala Harris. Secretary Su, however, appears to still be at least four votes shy of getting to fifty.

Senate Majority Leader Chuck Schumer (D-NY) has been unable now for over three months to wrangle 50 Democrats and Independents to vote to confirm President Biden’s nomination of Ms. Su to step up to the Secretary of Labor position. The White House is now engaged in a last-ditch effort to politically coddle, cajole, promise and threaten the Democrat holdouts to agree to confirm Ms. Su. So far, those bruising pressures have proved unavailing. What originally looked like a potential setback for Ms. Su is now turning out to also be a major potential setback for President Biden.

The Senate Political Party Lines Have Changed, as a Practical Matter

Democrat Senators up for re-election in the Fall 2024 Senatorial elections hailing from “battleground” states are increasingly showing their independence and distancing themselves from the White House to better position themselves for the difficult election coming next year. White House concerns about replacing Cabinet Members next year as the country nears even closer to the election underscore its loss of grip on Democrat Senators who fear they are fighting for political survival, moving to the middle, and do not want votes for controversial Presidential nominees to help build resistance to their re-election.

Thirty-three of the 100 U.S. Senate seats will be up for election in November 2024, per the usual. Democrat Senators are disproportionately at risk in those elections, however, because of their disproportionate success five years ago in 2018 when they won 20 Senate seats and Independents who caucus with the Democrats won three. By comparison, Republicans have only 10 Senate seats up for election in 2024. Four Democrat Senators and two Independents [Sinema (AZ) and Manchin (WV)] who caucus with the Democrats, are among the top six Senators thought to be vulnerable to Republican defeat in 2024. That is why you see Senators Manchin and Sinema moving their policy positions ever closer to the Republican party lines.

So, as this relates to Secretary Su’s nomination, the President and Senator Schumer are no longer looking out over a Senate Floor filled with 49 Republicans, 48 Democrats and 3 independents who caucus with the Democrats. Rather, the Senate Floor now looks like this checkerboard on controversial policy issues:

49 Republicans

44 Democrats

4 on-their-own Democrats

2 Independents who de facto now increasingly align with Republicans

1 Independent [King (ME)] who continues to caucus with the Democrats but increasingly votes with Republicans (up to over 50% from 33% just last year)

Friday, June 9, 2023: U.S. DOL’s PEAT Issued AI Think Tank Report on Accessible Technology & Inclusive Hiring

Official logos for the Office of Disability Employment Policy (ODEP) and the Partnership on Employment & Accessible Technology (PEAT)

On April 17, 2023, the U.S. Department of Labor’s (“DOL”) Partnership on Employment & Accessible Technology (“PEAT”) hosted a virtual Think Tank on the use of artificial intelligence (“AI”) tools in hiring. The goal of this Think Tank was to begin creating an Inclusive Hiring Profile based on the National Institute of Standards and Technology (“NIST”) AI Risk Management Framework (see our story on that framework here). On Friday, the DOL’s Office of Disability Employment Policy (“ODEP”) highlighted the resulting report in its weekly news brief.

PEAT fosters collaborations in the technology space that build inclusive workplaces for people with disabilities. It works with the developer community, institutions of higher education, and government agencies to build new and emerging technologies that are accessible to the workforce by design. The Think Tank event brought together leaders from ODEP, the Equal Employment Opportunity Commission, NIST, civil rights groups, including disability advocacy organizations, and technology industry associations and companies.

Key Takeaways 

The key takeaways (detailed further in the report) from this collaborative event were:

  1. Involve people with disabilities in technology design and use. As with any technology, AI hiring tools must be built, deployed, and monitored with direct involvement from people with disabilities, including those with intersectional identities.
  2. Share risk management duties across organizations. We cannot expect one group of vendors, employers, or policymakers to handle all risk management responsibilities on their own. Shifting blame can hamper real change. Responsible groups must understand how AI hiring tools impact disabled people and commit to using them in ethical ways. 
  3. Notify end users about AI tools and hold organizations accountable. We need to make it easier for people interacting with AI tools to understand the risks. Offering plain language notices can help end users learn how AI tools work, speak up about potential harms, and choose whether to opt-out. Transparent explanations can hold organizations accountable for minimizing risks in their use of AI tools.
  4. Staff at all levels need to support a culture of AI fairness. Applying the AI RMF to the hiring context requires cultural shifts across organizations and a commitment to continuous improvement. When they adopt AI hiring tools, organizations cannot simply check a box and consider them inclusive. Instead, leadership and staff need to champion fairness by establishing processes to continually evaluate their use.
  5. Make progress by balancing risk management and civil rights goals. As we create this Inclusive Hiring Profile, we need to consider relevant civil rights laws and regulations at the federal, state, and local levels. An effective Profile will incorporate inclusion across all protected classes, such as disability, age, race/color, national origin, religion, sex, sexual orientation, and gender identity.

The report also outlines the Next Steps for Creating the Inclusive Hiring Profile, details on the speakers, and Breakout Session Key Findings.

For more information regarding PEAT, ODEP, and the intersection of AI, accessible technology & inclusive hiring, see our recent WIR Special Edition DEAMCon23 recaps stories here, here, and here.

In Brief

Monday, June 12, 2023: U.S. EEOC Published Notice to Extend ADEA/OWBPA ICR w/o Change

Official Seal of the EEOC featuring Bald Eagle and bannerThe U.S. Equal Employment Opportunity Commission (“EEOC”) published a notice in the Federal Register of its request to OMB to extend – without change – the Information Collection Requirement (“ICR”) for the Age Discrimination in Employment Act of 1967 (“ADEA”) waiver third-party disclosure requirements. The Older Workers Benefit Protection Act (“OWBPA”) enacted in 1990, amended the ADEA to require employers to disclose certain information to employees (but not to the EEOC) in writing when they ask employees to waive their rights under the ADEA in connection with an exit incentive program or other employment termination program. Those requirements are contained in the regulation at 29 CFR 1625.22.

The current OMB approval expires on September 30, 2023. Comments are due by Friday, August 11, 2023, and may be submitted here.

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 (now overdue) 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 (now overdue) target date for its Final Rule on Employee or Independent Contractor Classification Under the Fair Labor Standards Act (RIN: 1235-AA43)

Tuesday, June 6, 2023: Comments due on Proposed OMB Circular No. A-4, “Regulatory Analysis” –

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) –

Tuesday, June 6, 2023: Comments due on OMB’s implementation of Section 2(e) of the “Modernizing Regulatory Review” E.O. –

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” –

Monday, June 19-Thursday June 22, 2023: The Workforce Metrics Retreat in White Sulphur Springs, West Virginia: “This retreat will bring together equal employment opportunity/affirmative action (EEO/AA); diversity, equity, inclusion, belonging and access professionals (DEIBA+); subject matter experts  and corporate voices for candid conversations related to the seemingly endless resistance and rollback on several fronts related to AA and DEIAB+ initiatives.”

Tuesday, June 27, 2023: The federal Pregnant Workers Fairness Act takes effect.

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 –

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)

NEW | Friday, August 11, 2023: Comments due on the EEOC’s proposal to extend – without change – the Information Collection Requirement (“ICR”) for the ADEA/OWBPA waiver third-party disclosure requirements

Friday, August 11, 2023: Deadline for Presenter Proposal Submissions for DEAMCon 2024 –

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

Wednesday, April 3 – Friday, April 5, 2023: DEAMcon24 New Orleans



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