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:
Monday, April 13, 2024: Contractors Have Second Opportunity to Comment on OFCCP’s Supply & Service Contractor Portal Information Collection
Agency Wants Contractors to Provide UEIs for Parent Companies & Establishments
OFCCP published in the Federal Register Notice of a 30-day public comment period on its request for the Office of Management and Budget’s (“OMB”) approval to renew OFCCP’s information collection, pursuant to the Paperwork Reduction Act (“PRA”), for the online Supply & Service Contractor Portal interface (formerly the “Affirmative Action Program Verification Interface”). Comments for the 30-day Notice period are due by June 12, 2024. You may submit them here or here.
Editor’s Note: This PRA review is not a request for Notice and Comment pursuant to the Administrative Procedure Act. As a result, OMB will not review OFCCP’s Notice to determine whether the authority OFCCP seeks is otherwise authorized by law.
The current OMB approval for this information collection expires on August 31, 2024. To allow for IT updates to the system, OFCCP also requested permission to use the currently approved information collection up to 90 days after OMB approves the new collection.
The 30-day Notice references OFCCP’s previous 60-day Notice published on December 12, 2023 (see our story here). The 60-day comment period closed on February 12, 2024, with three comments submitted.
Along with its renewal request, OFCCP wants to add a requirement for contractors to enter the Unique Entity ID (“UEI”) for the “Parent Company” and “Establishment” fields. As we reported in April 2022, the federal government stopped using the Dun & Bradstreet (DUNS) Number to uniquely identify entities. Instead, all agencies of the federal government have transitioned to the use of the Unique Entity ID (UEI) number, which SAM.gov generates. (See our story on the 60-day Notice for more details.)
Administrative Procedure Act Notice & Comment Process Still Lacking
In our earlier story on the 60-day Notice, we explained that this PRA Notice and Comment process does not suffice to meet the separate requirements of the Administrative Procedure Act’s (“APA’s”) Notice and Comment process. For example, the OMB’s PRA process does not examine or concern itself with the APA’s primary (but not exclusive) concern whether the at-issue compliance requirement is “otherwise in accordance with law.” As a result, OFCCP more likely than not, cannot enforce compliance with its Contractor Portal since it imposes new burdens on the regulated community. (For additional explanation on this point, see our story here.)
Current Portal Certification Compliance “Deadline” is July 1, 2024
Nevertheless, on April 1, OFCCP once again opened its online Contractor Portal for federal contractors and subcontractors to certify that they have developed and maintained Affirmative Action Programs for each establishment or functional unit. OFCCP set a certification deadline of July 1, 2024. (See our story here.)
In Brief
Tuesday, May 7, 2024: NLRB Appealed District Court Ruling That Struck Down Its Joint Employer Rule
The National Labor Relations Board (“NLRB”) filed a Notice of Appeal to the federal Fifth Circuit Court of Appeals (New Orleans) of a federal district court’s ruling that struck down the Board’s Joint Employer Final Rule. The Final Rule was scheduled to take effect nationwide on February 26, 2024 (see our story here). However, in March, U.S. District Judge J. Campbell Barker of the Eastern District of Texas (in Tyler) struck down the Rule (our story is here). At that time, the NLRB stated it was considering “next steps.” The case is Chamber of Commerce of the United States of America, et al v. NLRB, No. 6:23–cv–00553.
The Rule, if it were to become legally effective, would provide a new, broader standard to determine whether two or more employers are joint employers of particular employees within the meaning of the National Labor Relations Act. We discussed the Final Rule, published in late October 2023, in detail here. Last week, we also reported that President Biden vetoed a Congressional Resolution that would have nullified the Rule.
Wednesday, May 8, 2024: OSHA Announced Structural Changes to Its Regional Offices
The Labor Department’s Occupational Safety and Health Administration (“OSHA”) announced structural changes to its regional operations “designed to direct its resources effectively and make the agency more resilient.” Details on those changes are included in the agency’s press release. A map of OSHA’s new regional structure and boundaries is available here.
Thursday, May 9, 2024: U.S. GAO Revised Report on Military Spouse Employment Focused on Challenges of Part-Time Work
Coinciding with Military Spouse Appreciation Day, the U.S. Government Accountability Office (“GAO”) updated its Report, originally released on February 8, focusing on the challenges of part-time employment for military spouses. Military spouses who the GAO interviewed said they worked part-time because they needed flexible schedules to care for children and to accommodate frequent military moves. The GAO updated and reissued this Report “to revise a paragraph on page 4 and related endnote 6 to clarify that the administrative and survey data we analyzed measured military spouse employment over different timeframes.” We discussed the Report in detail when it was originally released in February.
On a related note, the Labor Department’s Veterans’ Employment and Training Service (“VETS”) observed Military Spouse Appreciation Day by highlighting its Transition Employment Assistance for Military Spouses and Caregivers (“TEAMS”) workshops that are tailored specifically for military spouses and available virtually and on a flexible schedule.
Thursday, May 9, 2024: Julie Su’s Testimony on Fiscal Year 2025 Budget Before Senate Subcommittee Similar to Earlier Testimony Before House Subcommittees
Acting Secretary of Labor Julie Su’s testimony before the Senate Appropriations Committee’s Subcommittee on Labor, Health and Human Services, Education, and Related Agencies was similar to her testimony in recent weeks before two House Subcommittees. On April 17, Ms. Su testified before the House Appropriations Committee’s Subcommittee on Labor, Health and Human Services, and Education (see our story here). On May 1, she testified before the House Committee on Education and the Workforce (see our story here.)
Like the previous House Subcommittee hearings, the Senate Subcommittee hearing – lasting just under two hours – displayed the ongoing partisan squabbles over Ms. Su’s suitability for the position and the U.S. Department of Labor’s policies and enforcement activities. In all three hearings, Acting Secretary Su’s comments focused largely on child labor law enforcement and workforce development programs, including apprenticeship programs.
New Publications
Thursday, May 9, 2024: In recognition of Mental Health Awareness Month, the U.S. Department of Labor’s Office of Disability Employment Policy shared, in its weekly News Brief, multiple resources to help employers learn about. and take action on, workforce mental health and well-being
Thursday, May 9, 2024: U.S. Office of Personnel Management Acting Director Rob Shriver interviewed U.S. Surgeon General Dr. Vivek Murthy to discuss workplace mental health, including how to balance meaningful contact with remote work
Looking Ahead:
Upcoming Date Reminders
We added three NEW items to our calendar this week:
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 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); On February 9, 2024, OSHA submitted its Final Rule to OMB for review and approval
March 11, 2024: Previous effective date of NLRB’s Final Rule on Standard for Determining Joint-Employer Status under the NLRA (per U.S. District Judge’s order; original February 26, 2024, effective date extended); On March 8, 2024, a U.S. District Judge vacated this Final Rule and NEW on May 7, 2024, the NLRB filed a Notice of Appeal – stay tuned for further developments
March 2024: EEOC’s (now overdue) 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 (now overdue) target date for its Final Election Protection Rule (RIN: 3142-AA22)
May 13, 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; previous February 20, 2024 deadline extended
May 14, 2024 (11 am ET): Federal Trade Commission webinar on its Final Rule banning most non-compete agreements
May 15, 2024 (11:00 – 5:30 EST): US DOL WHD online seminar on prevailing wage requirements for federally-funded construction projects; register here
May 30, 2024: Deadline for comments on the Census Bureau’s Proposal to Test Questions on Sexual Orientation & Gender Identity for the American Community Survey
NEW May 23, 2024: (2:00 pm – 3:00 pm ET): DE Masterclass Employment Law Roundtable | Thinking Holistically to Make Job Descriptions More Gender-Neutral and Disability Friendly
May 2024: FAR Council’s target date for its Final Rule to Prohibit TikTok [or any successor application or service developed or provided by ByteDance Limited] on Federal Government Contractor Devices (RIN: 9000-AO58); the Interim Rule is here
June 4, 2024: Deadline for 2023 EEO-1 Survey Component 1 Data Collection
June 6, 2024 (11:00 – 11:45 am CDT): OFCCP webinar for federal contractors on its pre-complaint inquiry process for workers
NEW June 12, 2024: Comment deadline for OFCCP’s request to renew OMB approval of its online Supply & Service Contractor Portal interface information collection, including a new requirement for contractors to provide UEI numbers for the parent company and its establishments
June 18, 2024: EEOC’s Final Rule to Implement the Pregnant Workers Fairness Act takes effect
July 1, 2024: OFCCP’s asserted “deadline” for covered federal Supply and Service contractors & subcontractors to certify, via OFCCP’s online Contractor Portal, that they have developed & maintained Affirmative Action Programs for each establishment or functional unit
July 1, 2024: First effective date for US DOL WHD’s Final Rule on Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales, and Computer Employees (Overtime Rule); the standard salary level necessary for exemption – i.e., eligible for overtime pay – will increase from $35,568/year to $43,888/year and the highly compensated employee threshold will increase from the current $107,432/year to $132,964/year
August 29, 2024 (11:00 – 5:30 EST): US DOL WHD online seminar on prevailing wage requirements for federally-funded construction projects; register here
September 4, 2024: Scheduled effective date for Federal Trade Commission Final Rule banning most non-compete agreements
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)
January 1, 2025: Second effective date for US DOL WHD’s Final Rule on Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales, and Computer Employees (Overtime Rule); the standard salary level necessary for exemption – i.e., eligible for overtime pay – will increase from $43,888/year to $58,656/year and the highly compensated employee threshold will increase from $132,964/year to $151,164/year
May 21 – May 23, 2025: DEAMcon25 in Scottsdale, Arizona
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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