OFCCP Week In Review: January 22, 2024

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:

• Conservative Activist Group Filed Complaints with OFCCP Alleging Prominent Airlines’ DEI Programs Violated Their Federal Contracts
• In Brief
• New Publications
• Looking Ahead: Upcoming Date Reminders

Wednesday, January 17, 2024: Conservative Activist Group Filed Complaints with OFCCP Alleging Prominent Airlines’ DEI Programs Violated Their Federal Contracts

“Doubling down” on its new tactic, America First Legal (“AFL”), one of the conservative community activist groups we discussed in our story last August about anti-DEI lawsuits and Equal Employment Opportunity Commission (“EEOC”) Charges, filed administrative complaints with OFCCP regarding three prominent commercial airline carriers. AFL asserted that various, specified recruitment, hiring, training, and promotion practices of these airlines violated their federal contracts (and continue to do so) by preferentially favoring minorities and/or women.

Administrative “Complaints” filed with OFCCP are the legal and administrative equivalent of “Charges” that claimants file with the EEOC to allege violations of the rights of the complaining party. The OFCCP Complaint/EEOC Charge seeks the assistance of the enforcing agency to enforce the Charging Party’s claimed legal rights under the civil rights statutes the at-issue agency enforces.

Earlier this month, on January 2, AFL also filed complaints with the OFCCP and the EEOC challenging a pharmaceutical company’s DEI policy and practices as unlawfully discriminatory. We made an editorial decision NOT to run that story since the Complaint (a) was an isolated one-off at the time, (b) appeared fatally legally flawed and subject to automatic OFCCP dismissal for want of a proper claim, and (c) appeared to be a publicity ploy and not a sincere Complaint alleging “adverse action.” [AFL very much appears to lack “standing” to file an OFCCP Complaint since its Complaint neither alleged that AFL had Members who were either “Applicants” or “Common Law Employees” or that their Members were adversely affected by the at-issue corporate policies and practices.] So, AFL is now back, two weeks later now “upping the ante” by filing three more administrative Complaints with OFCCP.

As we cautioned in our previous story, these actions are based on allegations that have not, to date, been proven in court or any administrative forum. So far, there is no indication from OFCCP as to how it might respond to these third-party complaints.

Wednesday, January 17, 2024: US DOL ETA Officially Published NPRM to “Modernize Registered Apprenticeship Regulations”

Over a month after the U.S. Department of Labor’s (“DOL”) Employment and Training Administration (“ETA”) first announced it, the agency officially published its Notice of Proposed Rulemaking (“NPRM”) designed to enhance the National Apprenticeship System by modernizing regulations for Registered Apprenticeships. The ETA last updated these regulations in 2008. The official Federal Register publication spans a whopping 181 pages. Comments on the NPRM are due on March 18, 2024. You may submit them here or here.

The ETA also provided special instructions for those interested in submitting comments that concern the information collection aspects of this NPRM.

We reported on the details of the proposal when the ETA announced them last month. At that time, the ETA also noted a planned webinar on the proposal scheduled for January 11. However, the agency since rescheduled the webinar for January 25 from 2 to 3:30 p.m. EST. Click here to register. The DOL also set up a landing page on the NPRM.

Friday, January 19, 2024: President Biden Signed Another Two-Tiered Continuing Resolution Appropriations Bill to Fund Federal Government on an Interim Basis

US DOL Budget Will Remain at its Present Level Through March 8, 2024

President Biden signed into law H.R. 2872, another “two-tiered” budget bill that provides fiscal year (“FY”) 2024 appropriations to federal agencies at current levels through either March 1, 2024 or March 8, 2024, depending on the federal agency in question.

The measure, entitled the “Further Additional Continuing Appropriations and Other Extensions Act, 2024,” is a Continuing Resolution (“CR”). This CR is intended to allow both chambers more time to resolve contentious details to arrive at a broader FY 2024 budget deal in lieu of the Congress declaring to the American people that is has reached impasse over how much federal money to spend, and where. The effect of a CR is that it authorizes budget to the federal agencies to continue operating but only at the same level of budget that Congress gave each agency for the just concluded FY (in this case FY 2023) and not at the usually higher level of the proposed budget for the new FY now in progress (FY 2024).

Holding The Line: Those Republican and Democrat Members of the House and Senate who favor fiscal restraint are pleased that they have been effective to keep spending thus far at last year’s levels and not allow the federal budget to continue to grow.

Third Continuing Resolution for FY 2024

President Biden signed a previous CR – H.R. 5860 – into law on September 30, 2023 (the last day of FY 2023), funding the federal government through November 17, 2023. Then on November 16, 2023, the President signed into law H.R. 6363, a two-tiered CR bill.

Like the November CR, the latest CR law signed on Friday puts the federal agency funding into two batches. The first batch funds the Departments of Transportation, Housing and Urban Development, Energy, Veterans Affairs, and Agriculture at current levels through March 1, 2024. The previous CR had funded those agencies at current levels through January 19, 2024. The second batch funds the rest of the government – including the Department of Labor/OFCCP, the Equal Employment Opportunity Commission, and the National Labor Relations Board – at current levels through March 8, 2024. The previous CR funded those agencies at current levels through February 2, 2024. See our story on the November CR for an explanation of what this means for OFCCP.

Friday, January 19, 2024: US DOL Requested Public Comments on Extension, Without Change, of Information Collection Requirements for Its HIRE Vets Medallion Program

The U.S. Department of Labor’s Veterans Employment and Training Service (“VETS”) published a Notice in the Federal Register of its request to the White House Office of Management and Budget (“OMB”) to extend – without change – the Information Collection Requirement (“ICR”) for its HIRE Vets Medallion Program. Comments are due on or before March 19, 2024. See here for instructions on how to submit your comments.

VETS held its most recent HIRE Vets Medallion Award Ceremony on November 8, 2023. See our story 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.