Thursday, June 13, 2024: US DOL Inspector General’s Office Scheduled Audit to Review OFCCP’s Construction Contractor Compliance Enforcement Efforts

OFCCP Still Has Not Implemented 2020 OIG Audit Report Recommendation to Update Its Construction Program Participation Goals for Minorities & Women

Official seal of the U.S. Department of Labor’s (DOL) Office of Inspector General (OIG)The U.S. Department of Labor’s (“DOL”) Office of Inspector General (“OIG”) sent a letter to Acting OFCCP Director Michele Hodge informing her of its plans to conduct an audit to review OFCCP’s “efforts to ensure construction contractors comply with equal employment opportunity and affirmative action obligations.” It scheduled July 9 for the audit “entrance conference.”

Readers may recall that we reported last October that OFCCP still has not implemented a 2020 OIG Audit Report (see our story here) recommendation to update its Construction Program Participation Goals for Minorities & Women. Our review of the OIG’s Recommendation Dashboard (by clicking on the “All” and “OFCCP” filters on the right side of the Dashboard) shows that OFCCP has yet to implement this recommendation. (OFCCP did implement the Report’s other recommendation to “develop a risk-based approach to select construction contractors for EEO compliance evaluations.”)

In our October 2023 story, we also explained what federal OIGs do and reported that the DOL OIG Audit Workplan for Fiscal Year 2024 stated that it may conduct an audit focusing on the effectiveness of OFCCP Compliance Evaluations. Page 15 of the Audit Workplan characterized as “discretionary” a possible OIG audit to “focus on the effectiveness of OFCCP’s enforcement of anti-discrimination and affirmative action obligations through compliance evaluations.” After the OIG commits resources to all mandatory audits, it uses its remaining funds for discretionary audits. (See also our “DE Under 3” video here.)

Friday, June 14, 2024: New OFCCP VEVRAA Guidance Clarifies That its Protected Veteran “Benchmark for hiring” is a Recruitment Goal & Not a Hard Number Quota

logo for the Office of Federal Contract Compliance Programs (OFCCP)OFCCP announcednew example illustrating the use of the “individualized” alternative VEVRAA national benchmark calculation methodology and an updated VEVRAA Affirmative Action Program sample with additional information on using the individualized “Benchmark for hiring” effectively to monitor veteran recruitment efforts

Editorial Note: OFCCP’s new example is twice interesting: First, almost no federal Government contractors VEVRAA covers use the alternative “individualized method” allowing them to calculate their own private and customized Veteran’s “Benchmark for hiring” percentage. Rather, almost all federal contractors VEVRAA covers instead use the percentage of Protected Veterans in the recruitment marketplace available to contractors to recruit (OFCCP currently calculates that number to be 5.2% ) that OFCCP calculates for contractors and supplies for free. OFCCP’s availability calculation thus allows federal contractors to know what percentage of Protected Veterans are in the marketplace available for them to recruit to the contractor’s front door without any contractor expenditure of additional time, expenses, or resources.

Second, the example properly identifies the awkwardly named “Benchmark for hiring” as a recruitment device advising contractors of OFCCP’s calculation of the percentage of veterans in the marketplace available to be recruited to their front doors and potentially considered thereafter for employment (i.e., a recruitment goal).

“After reviewing the preceding year (sic) (1/1/22 to 12/31/22) data and recognizing they [the contractor] did not meet the national benchmark of 5.5%, WBC identified alternative efforts to recruit veterans in the months ahead.” [NOTE: OFCCP wrote this example before it announced on March 28, 2024, that the National Benchmark had dropped to 5.2%.]

This helps resolve the uncertainty that occasionally erupts in the contractor community as to whether OFCCP intended its “Benchmark for hiring” to be a hard number quota as implied by its awkward title. Rather, OFCCP’s clarifying language makes clear that the “Benchmark for hiring” is merely OFCCP’s calculation, for the contractor’s benefit, of the percentage of veterans available to the contractor in the recruitment marketplace.

And, what makes that “recruitment goal” conclusion even more interesting is that there is currently widespread consensus in the Affirmative Action community that this is one of several hiring activities as to which a contractor could choose– in its discretion (not because driven by federal government compulsion)–to lawfully impose the quota hiring of veterans (whether “Protected Veterans” who VEVRAA covers, or all “veterans”) since those who are not veterans are not a Protected Group.

Monday, June 17, 2024: Contractors Have 2nd Opportunity to Comment on Proposed Changes to OFCCP Construction Compliance Review Scheduling Letter, Itemized Listing, & Construction Contract Award Notification Requirement Form

logo for the Office of Federal Contract Compliance Programs (OFCCP)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 of proposed changes to its Information Collection Requirements (“ICRs”) for federal construction contractors in conjunction with its request for OMB approval to continue the ICRs pursuant to the federal Paperwork Reduction Act. The proposal includes significant changes to OFCCP’s Construction Contractor Scheduling Letter and Itemized Listing, including two new items and multiple new subparts to its existing Itemized Listing. OFCCP also proposed changes to OFCCP’s Construction Contract Award Notification Requirement Form CC–314. Comments for the 30-Day Notice period are due by July 17, 2024. You may submit them here or here.

The 30-Day Notice references OFCCP’s previous 60-day Notice published on February 26, 2024 The 60-Day comment period closed on April 26, 2024, with two comments submitted. We detailed OFCCP’s extensive proposed changes in our earlier story on the 60-Day Notice.

OMB last approved OFCCP’s Construction ICRs, including its audit Scheduling Letter and Itemized Listing, without substantive change on November 22, 2022. That approval expires on July 31, 2024. Our story on that approval explained that the only change to the ICRs then was a minor change to OFCCP’s Construction Contract Award Notification Form (Form CC-314) to add a missing e-mail address field for the “Contractor Awarded Contract or Subcontract.” At that time, there was no change to the Construction Scheduling Letter and Itemized Listing.

As of our WIR deadline, no new 30-Day Supporting Statement was publicly posted. The Federal Register 30-Day Notice itself does not mention any changes to the ICR from the 60-Day Notice. We will follow up later should OMB/OFCCP publicly post any 30-Day Supporting Statement, which may include more information.

In Brief

Monday, June 10, 2024: Navigating OFCCP’s Growing & Increasingly Splintered FAQ Webpages to Find Hidden Treasures

logo for the Office of Federal Contract Compliance Programs (OFCCP)Currently, OFCCP’s FAQ webpage has a total of 49 separate topics divided under six headings. Those six headings are: (1) Laws and Policy – 12 FAQ sections; (2) Compliance – 11 FAQ sections; (3) Affirmative Action Programs –10 FAQ sections; (4) Programs – 6 FAQ sections; (5) Conciliation and Enforcement – 5 FAQ sections; and (6) Workers – 5 FAQ sections.

In recent years, the agency has often revised, and otherwise edited, its various FAQ topic sections without any notice, and occasionally without even modifying the “Last updated” date at the bottom of the webpage to reflect that changes, however subtle, were made. Accordingly, we advise readers to check the applicable FAQ sections as necessary to ensure they have the latest OFCCP enforcement position on the issue at hand, with the understanding that FAQs do not have the force and effect of the law.

Tuesday, June 11, 2024: OSHA Submitted Its Long-Anticipated National Heat Illness Prevention Standard Proposed Rule for OMB Review

Official Logo for the Occupational Safety and Health Administration (OSHA)In the making since 2021, the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) submitted for White House Office of Management and Budget (“OMB”) review its Proposed Rule on “Heat Illness Prevention in Outdoor and Indoor Work Settings” (see the abstract here). On May 6, 2024, Acting Secretary of Labor Julie Su testified before the House Committee on Education and the Workforce that OSHA expects to publish this long-anticipated Proposed Rule “later this year” (see our story here). Two days later, OSHA issued a press release stating that, after it presented its draft Proposed Rule to the OSHA Advisory Committee on Construction Safety and Health, the committee unanimously recommended OSHA move forward with a Notice of Proposed Rulemaking (“NPRM”) for public comment.

OSHA published an “Advance Notice of Proposed Rulemaking” regarding this potential regulation on October 27, 2021. We reported in our story on the Fall 2023 Regulatory Agenda that, per the requirements of the Small Business Regulatory Enforcement Fairness Act (“SBREFA”), OSHA convened a Small Business Advocacy Review (“SBAR”) Panel on August 25, 2023, to gather feedback. In the Fall 2023 Agenda, OSHA set a target date of November 2023 for completing the SBREFA requirements and it planned to complete its analysis of the SBREFA report in January 2024. However, OSHA did not list a target date for its NPRM in the Fall 2023 Agenda.

Wednesday, June 12, 2024: Republican Legislators Introduced “Dismantle DEI Act”

Official Seal of the United States CongressAlthough unlikely to pass, six Senators, led by JD Vance (R-OH) and Bill Cassidy (R-LA), and 16 House members, led by Representative Michael Cloud (R-TX), introduced the “Dismantle DEI Act.” Both Senator Vance and Representative Cloud issued respective press releases on the bill. The proposed legislation would rescind multiple Executive Orders (“EOs”) (but not EO 11246) and Memoranda and amend several federal statutes, including federal contracting statutes to prohibit DEI practices. It would also eliminate all federal DEI programs and related funding for federal agencies, federal contracts, federal grant awardees, and educational accreditation agencies.The 48-page proposed measure defines “Diversity, Equity, or Inclusion Practice,” as:

“(1) discriminating for or against any person on the basis of race, color, ethnicity, religion, biological sex, or national origin;

(2) requiring as a condition of employment, as a condition for promotion or advancement, or as a condition for speaking, making a presentation, or submitting written materials, that an employee undergo training, education, or coursework, or other pedagogy, that (sic) asserts that a particular race, color, ethnicity, religion, biological sex, or national origin is inherently or systemically superior or inferior, oppressive or oppressed, or privileged or unprivileged; or

(3) requiring as a condition of employment, as a condition for promotion or advancement, or as a condition for speaking, making a presentation, or submitting written materials, the signing of or as sent to a statement, code of conduct, work program, or plan, or similar device that requires assent by the employee that a particular race, color, ethnicity, religion, biological sex, or national origin is inherently or systemically superior or inferior, oppressive or oppressed, or privileged or unprivileged.”

Looking Ahead:
Upcoming Date Reminders

We added two  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 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 2024: FAR Council’s target date (now overdue) 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 18, 2024: EEOC’s Final Rule to Implement the Pregnant Workers Fairness Act takes effect

 NEW  June 20, 2024 (2:00 pm – 3:00 pm ET): DE Masterclass Employment Law Roundtable | Everything You Want To Know About Applicant and Employee Self-Identification

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

July 9, 2024: “Failure to File” deadline for EEO-1 Survey Component 1 Data Collection (collection period opened on April 30, 2024, and previous deadline was June 4, 2024)

 NEW  July 17, 2024: Comments due on OFCCP’s Proposed Changes to its Construction Compliance Review Scheduling Letter, Itemized Listing, and Construction Contract Award Notification Requirement Form (details on the proposed changes are here)

July 23, 2024: Comments due on the FAR Council’s proposal to reinstate a requirement for federal contractors to report executive compensation and first-tier subcontract awards

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)

November 5, 2024: Federal Congressional and Presidential Election

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 

DEAMcon25 Call for Presenters

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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