OFCCP Week In Review: December 4, 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:

• DE Talk Podcast Focused on Veterans Employment Tools
• US Commerce Dept Requested Public Input on Private Sector “Business Diversity Principles”
• OMB Approved US DOL WHD’s Final Rule on Nondisplacement of Qualified Workers Under Service Contracts
• Federal Committee on Statistical Methodology Announced New Report on Race & Ethnicity Data Tools
• In Brief
• New Publications
• Looking Ahead: Upcoming Date Reminders

Tuesday, November 28, 2023: DE Talk Podcast Focused on Veterans Employment Tools

With roughly 250,000 servicemembers transitioning to civilian life each year, veteran hiring initiatives have become an essential focus for employers. In honor of National Veterans and Military Families Month, this episode shares how DirectEmployers and its family of brands support employers in attracting and hiring veterans. Tune into this episode to hear how VetCentral supports veteran representatives across the country, straight from an Indiana-based disabled veterans outreach program specialist; how the Partner Relationship Manager (PRM) guides outreach efforts to organizations serving veterans, transitioning service members and spouses; and finally, insights from United Rentals on how their veteran-focused career site has created a unique candidate experience for veterans.

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Wednesday, November 29, 2023: US Commerce Dept Requested Public Input on Private Sector “Business Diversity Principles”

The U.S. Department of Commerce (“DOC”) published a “Request for Information” Notice in the Federal Register seeking public comment on six draft “Business Diversity Principles” (“BDPs”) which describe best practices for the private sector (pdf version available here). The DOC is also seeking public input on the impact of diversity, equity, inclusion, and accessibility (“DEIA”) initiatives in the private sector. The deadline for comments is January 5, 2024, and instructions for submitting comments are here.

These BDPs are part of the DOC’s efforts to implement two of President Biden’s Executive Orders (“EOs”):

• EO 13985, “Advancing Racial Equity and Support for Underserved Communities Through the Federal Government” issued on January 20, 2021 (our story is here); and
• EO 14091, “Further Advancing Racial Equity and Support for Underserved Communities Through the Federal Government,” issued on February 16, 2023 (our story is here).

Of the six Business Diversity Principles cited in the notice, the following three are likely of the most interest to our readers:

• “Organizational Strategy: Use comprehensive assessments to evaluate the current state of Business Diversity within the organization, including demographic data across all levels and departments, company policies, practices, and workers’ perceptions. Develop and maintain DEIA councils, which oversee the implementation of Business Diversity initiatives and ensure alignment with overall company objectives. Regularly share progress updates to promote transparency and accountability.
• Workforce Development: Cultivate and maintain a diverse talent pipeline by partnering with educational institutions and community organizations and allocating resources for workforce development initiatives and accommodations. Remove barriers to entry, using demographic data to understand workforce composition, identify gaps, and shape organizational strategy. Equip workers, including those from underserved communities, with the necessary skills for advancement.
• Human Resources: Prioritize the promotion of internal talent, regularly review promotion data to identify barriers, provide senior leader sponsors for workers from underserved communities. Establish and maintain employee resource groups for workers from underserved communities. Clearly communicate potential internal career paths and advancement opportunities. Foster work-life balance through HR policies, such as flexible working arrangements, comprehensive parental leave, support for caregivers, and inclusive benefits packages.”

Thursday, November 30, 2023: OMB Approved US DOL WHD’s Final Rule on Nondisplacement of Qualified Workers Under Service Contracts

OMB Approval Means Publication Imminent

Clearing the way for publication, the White House Office of Management and Budget (“OMB”) approved the U.S. Department of Labor Wage and Hour Division’s (“WHD”) Final Rule on “Nondisplacement of Qualified Workers Under Service Contracts.” The WHD submitted the Final Rule for OMB approval on September 6, 2023.

On July 15, 2022, the WHD published its Notice of Proposed Rulemaking (“NPRM”). In the NPRM, the WHD intends the Rule to keep individuals employed after a federal service contract has expired (the Service Contract Act of 1965, as amended, covers most service contracts over $250,000). As proposed, the Rule would generally require contractors and subcontractors who work on covered federal service contracts to place clauses into successor contracts involving the “same or similar” work for existing services deals to provide employees a right of first refusal for positions under the contract for which those employees are qualified. For more details, see our story here. The public comment period closed on August 15, 2022, with 33 comments submitted.

In the Fall 2022 Agenda, the WHD planned to publish, in December 2022, an NPRM to “Analyze Comments.” However, that plan never materialized, and the Labor Department’s Spring 2023 Agenda stated that the WHD’s target date for its Final Rule was June 2023 (see our story here). Thus, the WHD is currently six months behind its target date schedule.

Friday, December 1, 2023: Federal Committee on Statistical Methodology Announced New Report on Race & Ethnicity Data Tools

Via an email to subscribers, the Federal Committee on Statistical Methodology (“FCSM”) announced that it added a new Report on Race and Ethnicity Data Tools to its Equitable Data Toolkit (“Toolkit”). The Toolkit is designed to provide federal agencies with tools that support equity analyses with a focus on historically underserved populations. It is intended to support an increase in available data, improve the accuracy of analyses, and ensure ethical and secure data governance to improve the representation of underserved populations in federal data and analyses. The FCSM noted that the choice of which populations to examine in the Toolkit was “influenced by” Executive Order 13985, “Advancing Racial Equity and Support for Underserved Communities Through the Federal Government” issued on January 20, 2021 (our story is here).

Following an introductory section, the Race and Ethnicity Data Tools Report contains sections on:

• Privacy and Confidentiality;
• Data Collection;
• Data Analysis and Evaluation;
• Data Access and Dissemination; and
• Collecting Detailed Data While Complying with the Office of Budget and Management’s (“OMB”) Race and Ethnicity Standards for Federal Data. [Note: we reported in May that the OMB Working Group Now Preparing Final Recommendations to Overhaul Federal Race & Ethnicity Data Collections.]

Each of the above sections contains a discussion of the relevant federal guidelines, plus references and links to applicable federal laws, federal agency guidance documents, and other resources.

Tuesday, November 28, 2923: US DOL VETS Announced Public Comment Opportunity on VETS-4212 Form

 The U.S. Labor Department’s Veterans’ Employment and Training Service (“VETS”) published a 60-day Notice in the Federal Register seeking public comments on the renewal of the White House Office of Management and Budget’s (“OMB”) current approval of the VETS-4212 reporting requirement. The notice does not mention any proposed changes to this reporting requirement. The OMB’s current approval is set to expire on April 30, 2024. VETS’ burden estimates for this requirement are listed here (20 minutes to file electronically and 40 minutes to respond via paper).

Covered federal Government contractors required to report are certainly free to and invited to comment on the length of time they incur to comply with the VETS’ reporting requirement.

The deadline for comments is January 29, 2024. To submit a comment, follow the instructions here.

Wednesday, November 29, 2023: Starting in late January, US DOL Teleworking Employees Must Report in Person More Often

The Federal News Network and the Federal Times reported that Acting Labor Secretary Julie Su told all Labor Department employees currently teleworking that they will have to report in person at least five days per two-week pay period, effective January 28.

We reported in August that the White House told federal agencies to “aggressively execute” return-to-office plans. The Federal News Network also has a chart of the federal agencies’ return-to-office plans here.

Wednesday, November 29, 2023: House Subcommittee Held Hearing to Highlight Concerns About US DOL’s WHD Overtime Rule Proposal

The House Education and the Workforce Committee’s Subcommittee on Workforce Protections held a hearing during which its Republican members strongly criticized the U.S. Department of Labor’s Wage and Hour Division’s (“WHD”) proposal to revise its regulations under Section 13(a)(1) of the Fair Labor Standards Act (“FLSA”). Section 13(a) implements the exemptions from minimum wage and overtime pay requirements for “executive,” “administrative,” and “professional” employees.

The proposed revisions include increasing the standard salary level necessary for exemption from the current $35,568 to $55,068 annually and the highly compensated employee total annual compensation threshold from the current $107,432 level to $143,988. The proposal would also provide an automatic updating (indexing) mechanism to allow for the timely and efficient updating of all the thresholds to reflect the current earnings data.

Subcommittee Chair Kevin Kiley (R-CA) led the charge in attacking the proposal, asserting that it was “poorly conceived,” especially because it is pending “[a]s businesses and nonprofits work to recover from the pandemic and record high inflation.” In contrast, Subcommittee Ranking Member Alma Adams (D-NC) expressed concern that her “Republican colleagues are attempting to undermine workers’ financial security.” See here and here for links to the prepared remarks of the hearing’s witnesses.

The WHD officially published the proposal on September 8, 2023, and the public comment period closed on November 7 with almost 26,300 comments submitted. See our stories here and here for more details.

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.