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:

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

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

In Brief

Tuesday, January 16, 2024: OFCCP Appointed Ronald Sullivan its SWARM Regional Director

logo for the Office of Federal Contract Compliance Programs (OFCCP)Via an email to stakeholders, OFCCP Acting Director Michele Hodge announced that she had selected Ronald (“Ronny”) Sullivan to be OFCCP’s Southwest and Rocky Mountain (“SWARM”) Regional Director, effective immediately. Mr. Sullivan joined OFCCP in 2006 as a Compliance Officer and has served as the Deputy Regional Director for the SWARM Region since 2022.

The previous, long-time SWARM Regional Director, Melissa Speer, retired last year. Jane Suhr, OFCCP’s Pacific Regional Director, served as the interim Acting SWARM Regional Director in the months prior to Mr. Sullivan’s elevation to SWARM Regional Director.

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.

Illustration of gentleman kicking a can down the roadThe 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

HIRE Vets Medallion ProgamsThe 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.

New Publications

New Publications

Tuesday, January 16, 2024: The U.S. Congressional Research Service published the following two reports that, while not providing any new information, contain good summaries of their respective subjects:

  1. a four-page Report to Congress on the “Proposed Revisions to Statistical Policy Directive No. 15: Standards for Maintaining, Collecting, and Presenting Federal Data on Race and Ethnicity;” and
  2. a five-page Report on “The [U.S. Census Bureau’s American Community Survey.”

Looking Ahead:
Upcoming Date Reminders

There are five  NEW  items added to our calendar this week: 

November 2023: EEOC’s (now overdue) target date for publication of an Interim Final Rule to Amend Procedural & Administrative Regulations to Include the PWFA (RIN: 3046-AB31)

November 2023: EEOC’s target date (now overdue) to publish its NPRM to amend its regulations on exemptions to certain recordkeeping and reporting requirements (RIN: 3046-AB28)

December 29, 2023: Statutory deadline (now overdue) for EEOC to finalize regulations to enforce the Pregnant Workers Fairness Act (RIN: 3046-AB30); EEOC submitted its Final Rule for OMB review on December 27, 2023

December 2023: U.S. OSHA’s current target date (now overdue) to publish its Final Rule on Occupational Exposure to COVID-19 in Healthcare Settings (RIN: 1218-AD36)

January 15, 2024: Statutory deadline for EEOC’s (now overdue) publication of its Final Rule on the “2024 Adjustment of the Penalty for Violation of EEOC’s Notice Posting Requirement” (RIN: 3046-AB26)

January 22, 2024: Effective date of FAR Council Final Rule mandating Project Labor (i.e. Union) Agreements on large federal construction projects 

 NEW  January 25, 2024 (2:00 pm – 3:30 pm ET): USDOL ETA’s sponsored webinar on its proposal to Modernize its Registered Apprenticeship Regulations

January 29, 2024: Comment deadline on US DOL VETS request to renew currently approved VETS-4212 reporting requirement

February 12, 2024: Comment deadline for OFCCP’s request to renew OMB approval of its online Supply & Service Contractor Portal interface, including new requirement for contractors to provide UEI numbers for the parent company and its establishments

February 12, 2024: Effective date for US DOL WHD Final Rule on “Nondisplacement of Qualified Workers Under Service Contracts” 

February 20, 2024: Deadline for comments on US DOL’s Request for Information seeking public input on whether to revise the list of Schedule A job classifications that do not require permanent labor certifications to include occupations in Science, Technology, Engineering & Mathematics (“STEM”) & other non-STEM occupations.

February 26, 2024: Effective date of NLRB’s Final Rule on Standard for Determining Joint-Employer Status under the NLRA (previous December 26, 2023, effective date extended)

February 2024: FAR Council’s target date to publish Proposed Rule on “Pay Equity and Transparency in Federal Contracting”; OMB approved this Proposed Rule on January 11, 2024, clearing the way for publication

 NEW  March 1, 2024: Expiration date for Continuing Resolution to fund the Departments of Transportation, Housing & Urban Development, Energy, Veterans Affairs, and Agriculture at current levels

 NEW  March 8, 2024: Expiration date for Continuing Resolution to fund certain government agencies – including the US DOL/OFCCP, the EEOC, and the NLRB – at current levels

March 11, 2024: Effective date for US DOL WHD’s Final Rule on Employee or Independent Contractor Classification Under the Fair Labor Standards Act

 NEW  March 18, 2024: Comments due on US DOL ETA’s proposal to Modernize its Registered Apprenticeship Regulations

 NEW  March 19, 2024: Comment deadline for US DOL VETS request to extend – without change – the Information Collection Requirement for its HIRE Vets Medallion Program

March 2024: EEOC’s target date for proposal to amend its regulations regarding the electronic posting of the “Know Your Rights” Poster (RIN: 3046-AB29)

March 2024: U.S. NLRB’s target date for its Final Election Protection Rule (RIN: 3142-AA22)

April 3 – April 5, 2024: DEAMcon24 New Orleans – The DEAMcon24 Program is now live!

April 2024: U.S. DOL WHD’s current target date for its Final Rule on Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales, and Computer Employees (Overtime Rule) (RIN: 1235-AA39

September 2024: OFCCP’s current target date for its Notice of Proposed Rulemaking to “Modernize” Supply & Service Contractor Regulations (RIN: 1250-AA13)

September 2024: OFCCP’s current target date for its Final Rule on “Technical Amendments” to Update Jurisdictional Thresholds & Remove Gender Assumptive Pronouns (RIN: 1250-AA16)

September 2024: EEOC’s anticipated date for amending its FOIA procedures to add fees for electronic disclosure of records (RIN: 3046-AB20).

September 2024: U.S. DOL WHD’s target date to publish an NPRM on “Employment of Workers With Disabilities Under Special Certificates” (Subminimum Wage Rule) (RIN: 1235-AA14)

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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