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:

Tuesday, June 18, 2024: OFCCP’s New Supporting Statement Surprisingly Revealed Many Revisions & Additions to its Construction Contractor Compliance Audit Tools

logo for the Office of Federal Contract Compliance Programs (OFCCP)OFCCP published a whopping 42-page Supporting Statement for its 30-day Notice regarding its revised, proposed changes to its Construction Compliance Review Scheduling Letter, Itemized Listing, & Construction Contract Award Notification Requirement Form (CC-314). OFCCP’s Statement revealed seven revisions and nine additions to the agency’s 60-day Notice published just 3 ½ months ago. The 30-day Supporting Statement was posted on RegInfo.gov the day after OFCCP published the 30-day Notice in the Federal Register. NOTE: Despite nine additions to required contractor reporting, OFCCP did not change its calculated burden to contractors to report these new items to OFCCP by even one red cent.

Readers will likely recall that we reported last week on the June 17 Federal Register publication of the 30-day Notice and public comment period, but the new Supporting Statement was not yet available. (This has become a hallmark of the Biden OMB to report a new development requiring OMB approval—drawing press interest—but the details then follow only in the days after press interest in the story has subsided. Transparency and accountability are thus sacrificed with the details following by a week or so after public Notice of the proposed change at-issue, resulting in the 30-day public comment period being effectively reduced by almost 25%. This raises profound issues under the Paperwork Reduction Act as to whether a proper public comment period has occurred at all).

Although the new Supporting Statement is dated May 23, (three weeks before the June 17th Federal Register 30-day public Notice),  it did not appear on RegInfo.gov until Tuesday, June 18th, almost a month later. Page 9 of the new Supporting Statement says that OFCCP made only “minor changes” to “improve clarity in this 30-day proposal.” However, the changes in the 30-day proposal, compared to the earlier 60-day proposal, are detailed throughout no fewer than 15 pages (from pages 12–26) of the 30-day Supporting Statement.

Reminder: Public Comments in response to the 30-day Notice are due on or before July 17, 2024. You may submit them here or here.

Background on These Information Collection Requirements

Federal agency paperwork impacting 10 or more members of the public, like OFCCP’s Construction Compliance Review Scheduling Letter, corresponding Itemized Listing, and Construction Contract Award Notification Requirement Form (CC-314) all fall under what are bureaucratically called “Information Collection Requirements” (“ICRs”). Federal agencies, like OFCCP, must seek approval to continue their ICRs from the Office of Management and Budget (“OMB”) pursuant to OMB’s authority/requirement to enforce the federal Paperwork Reduction Act (“PRA”).

OMB last approved OFCCP’s Construction ICRs, including its audit Scheduling Letter and Itemized Listing, without substantive change on November 22, 2022. That 3-year PRA approval will expire 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.

60-Day Notice Proposal

OFCCP published the previous 60-day Notice on February 26, 2024. However, that Notice itself did not list the substantive proposed changes. Details on the changes were revealed in a 34-page Supporting Statement on the 60-day Notice that OFCCP submitted to OMB to aid its review and approval. We detailed OFCCP’s extensive proposed changes in our earlier story on the 60-day Notice.

The 60-day comment period closed on April 26, 2024, with two comments submitted. OFCCP addressed those comments on pages 28-31 of the 30-day Supporting Statement.

30-Day Notice Modified Proposal

For the 30-day proposal, OFCCP modified seven of the proposed revisions in the 60-day proposal AND it added nine proposed revisions that were not in the 60-day proposal.

The Construction Contractor Scheduling Letter includes an Itemized Listing with three parts to cover the three “laws” OFCCP enforces: Executive Order 11246 (“EO 11246”), Section 503 of the Rehabilitation Act of 1973 (“Section 503”), and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (“VEVRAA”). (We refer to Executive Order 11246 as a “law” because it has the binding force and effect of law as though it were a statute passed by Congress and signed by the President. An Executive Order is the way a President issues his “laws” to manage the Executive Branch of Government over which the Courts and Congress have no dominion under our nation’s division of federal power among and between three branches of government).

Below, we discuss only the revisions to the proposed changes as described in the 30-day Supporting Statement. See our earlier story on the 60-day Notice for details on the other proposed changes that OFCCP did not revise in the 30-day Notice and still endorses to change when OMB approves OFCCP’s Construction ICR change proposals for another three years.

All page number references below are to the 30-day Supporting Statement. The marker means newly added proposed changes to items in the 30-day proposal that were not included in the 60-day proposal. The marker means proposed changes to an item that were included in the 60-day proposal that OFCCP has now revised in its 30-day proposal.

OFCCP Did Not Revise its Proposed Changes to Construction Contractor Scheduling Letter (Supporting Statement pages 9-10)

OFCCP did not make any revisions to its proposed changes to its Construction Contractor Scheduling Letter. See our earlier story on the 60-day Notice for details on those proposed changes.

Revised Proposed Changes to EO 11246 Itemized Listing (Supporting Statement pages 10-18)

In the 30-day proposal, as to the EO 11246 Itemized Listing, OFCCP made:

  • No revisions to its proposed changes as to Items 1, 3, 4, & 17 (See our earlier story on the 60-day Notice for details on those proposed changes);
  • Revised its proposed changes to Items 2, 13, 15, & 16; and
  • Added proposed changes to Items 5, 8, 9, 12, & 14.

The revised proposed changes to OFCCP’s new Itemized Listing in pursuit of the agency’s EO 11246 mission and authority include:

 REVISED  Item 2: Item 2 currently requests “[e]mployee level payroll data for all construction trade employees working in the (as appropriate insert either (1) the name(s) of SMSA or (2) the name(s) of Non-SMSA) during the preceding 12 months.” For each project, Item 2 requests payroll data with the following information:

  1. Employee name or ID;
  2. Gender;
  3. Race/Ethnicity;
  4. Hire date;
  5. All trades the employee was paid to work in;
  6. Total hours worked in each trade;
  7. Overtime hours worked in each trade;
  8. Wage rate(s) for each trade;
  9. Union affiliation;
  10. Apprenticeship status; and
  11. Employment type, including but not limited to, full-time, part-time, contract, per diem or day labor, and temporary employees.

In the 60-day Notice, OFCCP proposed modifying Item 2 to seek six additional fields of employment data to read as follows:

“For each project identified in Item 1, please provide employee level payroll data for all construction trade employees working in the (as appropriate insert either (1) the name(s) of SMSA or (2) the name(s) of Non-SMSA) during the preceding 12 months:

  1. Employee name or ID;
  2. Gender;
  3. Race/Ethnicity;
  4. Hire date;
  5. Union affiliation;
  6. Apprenticeship status;
  7. Employment type, including but not limited to, full-time, part-time, contract, per diem or day labor, and temporary employees;
  8. Job title;
  9. Trade or supervision, inspection, or onsite function (, foreperson);
  10. Regular hours worked in each trade, as indicated in your certified payroll;
  11. Regular rate of pay, as indicated in your certified payroll;
  12. Total regular pay, as indicated in your certified payroll;
  13. Overtime hours worked in each trade, as indicated in your certified payroll;
  14. Overtime rate of pay, as indicated in your certified payroll;
  15. Total overtime pay, as indicated in your certified payroll;
  16. Bonus or other pay, as indicated in your certified payroll;
  17. Time period covered for the pay and work hours provided in (j)-(p).”

In the 30-day Notice, OFCCP revised its proposal to add the following sentence to Item 2: “The information should include items (a)-(q) for all trade employees, as well as those employees involved in the supervision, inspection, and other onsite functions incidental to the actual construction.” Item 2(i) in the 60-day proposal already indicated that these employees are covered in the request. OFCCP explained that it proposed adding this language to the introductory language in Item 2 to make that requirement clearer.

 ADDED  Item 5: While OFCCP did not propose any changes to Item 5 in the 60-day Notice, the agency proposed a change to this Item in the 30-day Notice.

Currently, Item 5 requests: “Records of notices to the company’s subcontractors about their EEO obligations during the preceding 12 months. 41 CFR 60-4.3(a)(2).”

In the 30-day proposal, OFCCP proposed modifying the language in this item “for clarity.” The proposed revision would include the specific names of the notices referenced in this item. This revision would not change what information contractors must submit, but it will help OFCCP’s investigators and contractors better understand what documentation is required, the agency explained.

The proposed revision to Item 5 would read as follows:

“Records showing that the contractor included the “Standard Federal Equal Employment Opportunity Construction Contract Specifications” and the “Notice of Requirement for Affirmative Action to Ensure Equal Employment Opportunity” in its construction subcontracts in excess of $10,000, as required by 41 CFR 60-4.3(a)2The records must cover the preceding 12 months.”

 ADDED  Item 8: While OFCCP did not propose any changes to Item 8 in the 60-day Notice, the agency proposed a change to this Item in the 30-day Notice.

Currently, Item 8 requests: “Communications with unions and training programs describing the company’s EEO obligations and requesting their cooperation in assisting the company in meeting its EEO obligations in the (as appropriate insert either (1) the name(s) of SMSA(s) or (2) the name(s) of Non-SMSA(s)) during the preceding 12 months. 41 CFR 60-4.3(a)7.f.”

In the 30-day proposal, OFCCP proposed modifying the language in this item “for clarity and to better align with the applicable regulatory language.” The agency also proposed adding language asking the contractor to state that it does not have a union or training program, if applicable. According to OFCCP, this language will help its investigator investigators determine whether this item is applicable to the contractor (thereby decreasing follow-up requests for confirmation).

The proposed revision to Item 8 would read as follows:

“Documentation showing that the contractor provided notice of the company’s EEO policy to unions and training programs and requested their cooperation in assisting the company in meeting its EEO obligations during the preceding 12 months, as provided in 41 CFR 60-4.3(a)7.f. If the company does not have a union or training program, it should note that in its submission.”

 ADDED  Item 9: Although OFCCP did not propose any changes to Item 9 in the 60-day Notice, the agency proposed a change to this Item in the 30-day Notice.

Currently, Item 9 requests: “Records identifying trade organization affiliations and unions that provide workers for the company’s construction contracts in the (as appropriate insert either (1) the name(s) of SMSA or (2) the name(s) of Non-SMSA), including a copy of any applicable collective bargaining agreements. 41 CFR 60-4.3(a)7.f.”

Editorial Note: OFCCP continues to use the long-ago outdated reference to SMSA (“Standard Metropolitan Statistical Area”) that the U.S. Bureau of the Census replaced 34 years ago (really!) with a new term and new definition called “Metropolitan Statistical Area”. However, OFCCP is handcuffed to the SMSA reference since the agency has not updated its recruitment availability goals (which the agency calculates for construction contractors) since 1978 and 1980, respectively that remain reported by SMSA—the term and territorial subdivision definition then in use. The Congress’ Government Accountability Office (“GAO”) recommendations to OFCCP to update its now badly out-of-date (46-year-old) recruitment goals for construction contractors have thus far gone unheeded.

In the 30-day proposal, OFCCP corrected the regulatory citation for this item and proposed adding language requiring the contractor to indicate that it does not use a union or trade organization to provide workers, if applicable. The agency asserted that this language “will help OFCCP’s investigators determine whether this item is applicable to the contractor (thereby decreasing follow up (sic) requests for confirmation).”

The proposed revision to Item 9 would read as follows:

“Records identifying trade organization affiliations and unions that provide workers for the company’s construction contracts in the (as appropriate insert either (1) the name(s) of SMSA(s) or (2) the name(s) of Non-SMSA(s)), including a copy of any applicable collective bargaining agreements. 41 CFR 60-1.4(a)(6), 41 CFR 60-1.4(b)(6), and 41 CFR 60-1.12; see 41 CFR 60-4.3(a)5 and 41 CFR 60-4.3(a)7.d. If your company does not use a union or trade organization to provide workers, please indicate so in your response.”

 ADDED  Item 12: OFCCP did not propose any changes to Item 12 in the 60-day Notice, but the agency did propose a change to this Item in the 30-day Notice.

Currently, Item 12 requests: “Documentation of all solicitations of offers for subcontracts from minority and female construction contractors and suppliers, including circulation of solicitations to minority and female contractor associations and other business associations for construction subcontracts in the (as appropriate insert either (1) the name(s) of SMSA or (2) the name(s) of Non-SMSA) during the preceding 12 months. 41 CFR 60-4.3(a)7.o.”

In this 30-day proposal, OFCCP proposed modifying the language in this item to clarify the information OFCCP is requesting.

The proposed revision to Item 12 would read as follows:

“Documentation of subcontract solicitations made to minority- and female-owned and operated construction contractors, including documentation that the company circulated solicitations to minority and female contractor associations and other business associations for construction subcontracts in the (as appropriate insert either (1) the name(s) of SMSA(s) or (2) the name(s) of Non-SMSA(s)) during the preceding 12 months. 41 CFR 60-4.3(a)7.o.”

 REVISED  Item 13: Item 13 currently requests a list of training programs the contractor participated in, including upgrading programs, apprenticeship, trainee programs, and on-the-job training programs in the covered area during the preceding 12 months. In the 60-day Notice, OFCCP proposed adding pre-apprenticeship programs to the list of training programs noted in this request. The language in the current scheduling letter is intended to cover these programs, but adding a specific reference to pre-apprenticeship programs will clarify the scope of this request and ensure uniformity in contractors’ submissions, OFCCP explained.

In the 30-day proposal, OFCCP also proposed replacing the phrase “your company participated in” with “your company developed and/or participated in” to better align with the regulatory language at 41 CFR 60-4.3(a)7.e.

Thus, under the revised proposal, Item 13 would read as follows:

“A list of training programs your company developed and/or participated in, including upgrading programs, pre-apprenticeship, apprenticeship, trainee, and on-the-job training programs in the (as appropriate insert either (1) the name(s) of SMSA(s) or (2) the name(s) of Non-SMSA(s)) during the preceding 12 months. 41 CFR 60-4.3(a)7.e.”

 ADDED  Item 14: Although OFCCP did not propose any changes to Item 14 in the 60-day Notice, the agency did propose a change to this Item in the 30-day Notice.

Currently, Item 14 requests contractors to submit the Type 2 – Consolidated Employer Information Report EEO-1 (Standard Form 100 Rev.) from the most recent filing period. This item has been renamed as the EEO-1 Consolidated Report (EEOC Standard Form 100, formerly referred to as a “Type 2” report). Thus, in the 30-day Notice, OFCCP proposed modifying Item 14 to align with this revision. As proposed, Item 14 would read as follows:

“A copy of your EEO-1 Consolidated Report (EEOC Standard Form 100, formerly referred to as a “Type 2” report) from the most recent filing period. If your company did not file an EEO-1 Report, please provide the total number of individuals employed company-wide as of the date of this letter. 41 CFR 60-1.7(a).” [footnote omitted]

 REVISED  Item 15: Item 15 of the EO 11246 itemized listing currently requests a copy of the contractor’s reasonable accommodation policies and documentation of all accommodation requests received and their resolution, if any, during the preceding 12 months. The Section 503 and VEVRAA itemized listings request contractors submit documentation of all accommodation requests received and their resolution for individuals with a disability and disabled veterans, as required by 41 CFR 60-741.80 and 41 CFR 60-300.80.

In the 60-day Notice, OFCCP proposed modifying Item 15 to clarify that the contractor is only required to submit copies of its reasonable accommodation requests and resolutions, if any, if such reasonable accommodation requests and resolutions are different than those submitted in response to the Section 503 and VEVRAA itemized listings. This will prevent contractors from submitting duplicative information when responding to these items, OFCCP stated.

In this 30-day Notice, OFCCP also proposed adding the sentence italicized below:

“A copy of any reasonable accommodation policies and documentation of all accommodation requests received and their resolution, if any, during the preceding 12 months (if different than those submitted in response to Section 503 Item 9 and VEVRAA Item 9 below). This documentation would include requests for accommodations for pregnancy, childbirth, or related medical conditions and accommodations for religious observances and practices. 41 CFR 60-1.12(a). If your company does not have written reasonable accommodation policies or did not receive reasonable accommodation requests during the preceding 12 months, indicate so in your response.

According to the agency, this language will help OFCCP’s investigators determine whether this item is applicable to the contractor (thereby decreasing follow up requests for confirmation).

 REVISED  Item 16: OFCCP’s regulations at 41 CFR 60-4.3(a)7.k require a contractor to validate all tests and other selection requirements where there is an obligation to do so pursuant to the Uniform Guidelines on Employee Selection Procedures (“UGESP”) requirements outlined in 41 CFR part 60–3. (Contractors do not need to validate any test, although a “Best Practice” is to validate those tests which demonstrate a legally meaningful statistical “adverse impact” (meant in its technical sense and not just as to every statistical disparity)).

To verify contractors’ compliance with this requirement, in the 60-day Notice, OFCCP proposed adding a new item, Item 16, that would read as follows:

“Identify all tests and selection procedures used in the hiring process for positions in the (as appropriate insert either (1) the name(s) of SMSA or (2) the name(s) of Non-SMSA) during the preceding 12 months. Provide evidence that these tests and selection procedures were validated where necessary in accordance with 41 CFR 60-4.3(a)7.k.”

In the 30-day Notice, OFCCP proposed modifying the above language to make clear that “all tests and selection procedures” includes technology-based tests and selection procedures such as artificial intelligence, algorithms, or automated systems, as well as any other non-technology-based tests and selection procedures utilized by the company in the hiring process. OFCCP noted that it made this clarification in its recent Supply and Service Scheduling Letter. Adding this language to this item will better ensure that stakeholders understand that the same requirement applies to construction, the agency asserted.

In response to a public comment on this item, OFCCP also proposed adding a citation to the UGESP regulations at 41 CFR part 60-3. Under the 30-day proposal, Item 16 would now read as follows:

“Identify all tests and selection procedures used in the hiring process for positions in the (as appropriate insert either (1) the name(s) of SMSA(s) or (2) the name(s) of Non-SMSA(s)) during the preceding 12 months. This includes technology-based tests and selection procedures (e.g., artificial intelligence, algorithms, automated systems), as well as any other non-technology-based tests and selection procedures (e.g., written tests, work simulations, structured interview questions) utilized by your company in the hiring process. Provide evidence that these tests and selection procedures were validated where necessary in accordance with 41 CFR 60-4.3(a)7.k. and 41 CFR 60-3.”

Revised Proposed Changes to Section 503 Itemized Listing (Supporting Statement pages 18-21)

In the 30-day proposal, as to the Section 503 Itemized Listing, OFCCP made:

  • No revisions to its proposed changes as to Items 3 & 8 (See our earlier story on the 60-day Notice for details on those proposed changes);
  • Revised its proposed changes to Item 5; and
  • Added proposed changes to Items 2 & 4.

 ADDED  Item 2: While OFCCP did not propose any changes to Item 2 in the 60-day Notice, the agency proposed a change to this Item in the 30-day Notice.

Currently, Item 2 of the Section 503 Itemized Listing reads as follows:

“Communications with unions and community organizations regarding the company’s EEO obligations and recruitment efforts to hire individuals with disabilities for the immediately preceding AAP year and, if you are six months or more into your current AAP when you receive this listing, provide the communications for the at least the first six months current AAP year.”

In this 30-day Notice, OFCCP proposed modifying the language in this item for clarity and to better align with the regulatory requirement outlined in 41 CFR 60-741.44(g)(2). The agency also proposed removing the request for information regarding recruitment via community organizations during the covered period, as that information is already requested in Item 5.

Further, OFCCP proposed adding language asking the contractor to state that it does not have a union, if applicable. The agency stated that this language will help its investigators determine whether this item is applicable to the contractor (thereby decreasing follow-up requests for confirmation).

As proposed, Item 2 would read as follows:

“Documentation showing the contractor provided notice of the company’s EEO policy to unions and requested their cooperation in assisting the company in meeting its EEO obligations during the preceding 12 months, as provided in 41 CFR 60-741.44(g)(2). If the company does not have a union, it should note that in its submission.”

 ADDED  Item 4: OFCCP did not propose any changes to Item 4 in the 60-day Notice, but the agency proposed a change to this Item in the 30-day Notice.

Currently, Item 4 requests information on the contractor’s “most recent assessment of physical and mental qualifications.” In this 30-day proposal, OFCCP has corrected this language to refer to the “most recent assessment of physical and mental job qualifications” which better aligns with the applicable regulatory language at 41 CFR 60-741.44(c).

 REVISED  Item 5: Currently, Item 5 requests that contractors provide: “Results of the evaluation of the effectiveness of outreach and recruitment efforts that were intended to identify and recruit qualified individuals with disabilities as described in 41 CFR § 60-741.44(f).”

In the 60-day Notice, OFCCP proposed revising this item to provide more specificity on the documentation a contractor must submit regarding its Section 503 outreach and positive recruitment efforts.

In the 30-day Notice, OFCCP also proposed adding language at the end of the item clarifying the period covered by the request.

Thus, under the revised proposal, Item 5 would read as follows:

“Documentation of appropriate outreach and positive recruitment activities reasonably designed to effectively recruit qualified individuals with disabilities, and an assessment of the effectiveness of these efforts, as provided in 41 CFR 60-741.44(f). This includes documentation of all activities undertaken to comply with the obligations at 41 CFR 60-741.44(f), the criteria used to evaluate the effectiveness of each effort, and whether you found each effort to be effective. The documentation should also indicate whether you believe the totality of your efforts were effective. In the event the totality of your efforts was not effective in identifying and recruiting qualified individuals with disabilities, provide detailed documentation describing your actions in implementing and identifying alternative efforts, as provided in 41 CFR 60- 741.44(f)(3). Provide this information for the immediately preceding AAP year. If you are six months or more into your current AAP year on the date you receive this listing, also provide information on your outreach and recruitment activities for at least the first six months of the current AAP year.” [footnote omitted]

OFCCP asserted that this proposed language would clarify the scope of its request, promote uniformity in contractors’ submissions, and ensure consistency in what OFCCP is requesting across field offices. Further, OFCCP noted that it recently added the proposed language to a similar item in the Supply and Service scheduling letter.

Revised Proposed Changes to VEVRAA Itemized Listing (Supporting Statement pages 21-24)

In the 30-day proposal, as to the VEVRAA Itemized Listing, OFCCP made:

  • No revisions to its proposed changes as to Items 3 & 8 (See our earlier story on the 60-day Notice for details on those proposed changes);
  • Revised its proposed changes to Item 5; and
  • Added proposed changes to Items 2 & 4.

 ADDED  Item 2: While OFCCP did not propose any changes to Item 2 in the 60-day Notice, the agency proposed a change to this Item in the 30-day Notice.

Currently, Item 2 of the VEVRAA Itemized Listing reads as follows:

“Communications with unions and community organizations regarding the company’s EEO obligations and recruitment efforts to hire protected veterans for the immediately preceding AAP year and, if you are six months or more into your current AAP when you receive this listing, provide the communications for at least the first six months of the current AAP year.”

In this 30-day Notice, OFCCP proposed modifying the language in this item for clarity and to better align with the regulatory language. OFCCP has also removed the request for information regarding recruitment via community organizations during the covered period, as that information is already requested in Item 5.

The agency also proposed adding language asking the contractor to state that it does not have a union, if applicable. This language will help OFCCP’s investigators determine whether this item is applicable to the contractor (thereby decreasing follow-up requests for confirmation).

Thus, under the revised proposal, Item 2 would read as follows:

“Documentation showing the contractor provided notice of the company’s EEO policy to unions and requested their cooperation in assisting the company in meeting its EEO obligations during the preceding 12 months, as provided in 41 CFR 60-300.44(g)(2). If the company does not have a union, it should note that in its submission.”

 ADDED  Item 4: Although OFCCP did not propose any changes to Item 4 in the 60-day Notice, the agency proposed a change to this Item in the 30-day Notice.

Currently, Item 4 of the VEVRAA Itemized Listing requests information on the contractor’s “most recent assessment of physical and mental qualifications.” In this 30-day proposal, OFCCP has corrected this language to refer to the “most recent assessment of physical and mental job qualifications” which better aligns with the applicable regulatory language at 41 CFR 60-300.44(c).

 REVISED  Item 5: Currently, Item 5 requests that contractors provide: “Results of the evaluation of the effectiveness of outreach and recruitment efforts that were intended to identify and recruit qualified protected veterans as described in 41 CFR § 60-300.44(f).”

In the 60-day Notice, OFCCP proposed revising this item to provide more specificity on the documentation a contractor must submit regarding its VEVRAA outreach and positive recruitment efforts.

In this 30-day Notice, OFCCP also proposed adding language at the end of the item clarifying the period covered by the request.

Thus, under the revised proposal Item 5 would read as follows:

“Documentation of appropriate outreach and positive recruitment activities reasonably designed to effectively recruit qualified protected veterans, and an assessment of the effectiveness of these efforts, as provided in 41 CFR 60-300.44(f). This includes documentation of all activities undertaken to comply with the obligations at 41 CFR 60-300.44(f), the criteria used to evaluate the effectiveness of each effort, and whether you found each effort to be effective. The documentation should also indicate whether you believe the totality of your efforts were effective. In the event the totality of your efforts was not effective in identifying and recruiting qualified protected veterans, provide detailed documentation describing your actions in implementing and identifying alternative efforts, as provided in 41 CFR 60-300.44(f)(3). Provide this information for the immediately preceding AAP year. If you are six months or more into your current AAP year on the date you receive this listing, also provide information on your outreach and recruitment activities for at least the first six months of the current AAP year.” [footnote omitted]

According to OFCCP, this additional language will clarify the scope of the request, promote uniformity in contractors’ submissions, and ensure consistency in what OFCCP is requesting across field offices. The agency pointed out that it recently added this new language to a similar item in the Supply and Service Scheduling Letter.

Revised Proposed Changes to Form CC-314 – Construction Contract Award Notification Requirement Form (Supporting Statement Pages 24-26)

Currently, OFCCP Form CC-314 requires contracting officers, applicants, and contractors to submit information relevant to the contract award such as the prime contract number, the name of the awarding Federal agency, applicant, or contractor, the name and contact information of the representative submitting the notification, information on the contractor receiving the award, and basic information on the awarded contract.

See our earlier story on the 60-day Notice for details on OFCCP’s proposed changes to Form CC-314. In the 30-day Notice, the agency only made one revision to its proposed changes to Form CC-314.

The 60-day Notice proposed adding to the form a request for the Unique Entity Identifier (“UEI”) or Data Universal Numbering System (“DUNS”) number for awarding entities that are contractors. The UEI is an alphanumeric identifier assigned to an entity by the System for Award Management (SAM.gov). OFCCP uses the UEI to identify businesses and other entities that do business with the Federal Government. The UEI has replaced the DUNS number, which the federal government stopped using in April 2022. OFCCP proposed including the option to provide a DUNS Number to account for those users who may have not yet completed the transition UEI.

 REVISED  In the 30-day Notice, OFCCP also proposed adding a sentence instructing the user to insert “unavailable” if it does not have a UEI or DUNS number.

Tuesday, June 18, 2024: With Some Coverage Exceptions, EEOC’s PWFA Regulations Took Effect

Official Seal of the EEOC featuring Bald Eagle and bannerFollowing two federal court rulings in separate cases, the U.S. Equal Employment Opportunity Commission’s (“EEOC’s”) finalized regulations and corresponding Interpretive Guidance to implement the “Pregnant Workers Fairness Act” (“PWFA”) took effect, with some coverage exceptions for certain entities. The PWFA equates pregnancy with a disability for the first time by requiring a covered entity to provide reasonable accommodations to a qualified employee’s or applicant’s known limitation(s) related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, unless the accommodation will cause an undue hardship on the operation of the business of the covered entity. For additional background on the statute, see our stories here and here. For details on the finalized regulations, see our story here.

Federal Court in Arkansas Denied Injunctive Relief Requested by 17 State AGs

Late on Friday, June 14, Judge D. P. Marshall Jr. of the U.S. District Court for the Eastern District of Arkansas ruled that a coalition of 17 GOP states’ Attorneys General (“AGs”), lacked standing to sue to stop implementation of the PWFA regulations. (See our previous stories on this case – Tennessee v. EEOC, Case No 2:24-cv-00084 – here and here.) In legal terms, “standing to sue” means that an individual or organization has the right to initiate a lawsuit. To determine whether an entity has the right to initiate a lawsuit, a court will examine whether that person has a sufficient, personal stake in the outcome of a case to justify her participation in a judicial resolution of the dispute.

The AGs challenged the regulations based on their assertion that the regulations’ inclusion of abortion-related workplace accommodations is unconstitutional and violates the Administrative Procedure Act (“APA”). However, Judge Marshall found that, based on the provisions of the PWFA statute itself, the EEOC acted reasonably when it included abortion as a pregnancy-related condition in PWFA regulations. He also concluded that the AGs’ arguments that the regulation would interfere with their state bans on abortion were too speculative to justify their lawsuit.

The state AGs failed to make a compelling case for issuing a nationwide injunction of the entire EEOC regulation, Judge Marshall stated. He wrote:

“This case presents a narrow disagreement over a few words, a disagreement that seems unlikely to flower into few, if any, real-world disputes, especially given the undisputed reach of the new Act and the unchallenged portions of the implementing regulation. The States’ fear of overreach by one branch of the federal government cannot be cured with overreach by another.”

Therefore, the judge refused to issue an injunction to stop the regulations, and he dismissed the case.

Federal Judge in Louisiana Granted Preliminary Injunction to Block Regulations as to Specified Plaintiffs

On Monday, June 17, Judge David Joseph of the U.S. District Court for the Western District of Louisiana issued a preliminary injunction that partially blocks the regulations and accompanying guidance from taking effect until final judgment is entered in two cases consolidated before the judge –  Louisiana v. EEOC, Case No 2:24-cv-00629, and U.S. Conference of Catholic Bishops v. EEOC, Case No 2:24-cv-00691. (See our story discussing the Catholic Bishops’ lawsuit here.)

The scope of the injunction applies to:

  1. The States of Louisiana and Mississippi and any agency thereof;
  2. Any covered entity under the finalized regulations with respect to all employees whose primary duty station is located in Louisiana or Mississippi; and
  3. The Bishops Plaintiffs.

In Brief

Friday, June 14, 2023: US DOL ETA Submitted Final Rule on National Apprenticeship System Enhancements for OMB Review

Official Seal for the United States Department of Labor (DOL)The U.S. Department of Labor’s (“DOL”) Employment and Training Administration (“ETA”) submitted to the White House Office of Management and Budget (“OMB”) its Final Rule on “National Apprenticeship System Enhancements.” On January 17, 2024, the ETA officially published its Notice of Proposed Rulemaking (“NPRM”) designed to enhance the National Apprenticeship System by modernizing regulations for Registered Apprenticeships. The agency had announced the proposal several weeks prior to its official Federal Register publication, which spanned a whopping 181 pages. The ETA last updated these regulations in 2008. See our stories herehere, and here for details on the NPRM.

The comment period on the NPRM closed on March 18, 2024, with over 2,100 comments submitted. Now that the ETA has submitted the finalized version, OMB will complete its review process. Per the usual procedure, the finalized version will not be published unless and until the OMB approves it. Generally, OMB has 90 days to complete its review of each submission. However, there is no minimum period for review, and the review period may be extended.

Tuesday, June 18, 2024: OFCCP Posted Notice of Recent Updates to S&S Scheduling Letter FAQs

logo for the Office of Federal Contract Compliance Programs (OFCCP)OFCCP added a link to its website homepage’s “What’s New” section to the agency’s recently updated S&S Scheduling Letter FAQs. That FAQ webpage now shows at the bottom of the page that it was “Last updated on June 3, 2024.” Moreover, in the listing of those FAQS at the top of the page, six items now have a new sign to indicate exactly what OFCCP revised. Way to go OFCCP! Helpful “bird dogs” are good for transparency.

Friday, June 21, 2024: US DOL VETS Requested Information on “Black Veterans & Good Jobs”

Officials seals for the United States Department of Labor (DOL) and Veterans' Employment and Training Service ( VETS)The U.S. Department of Labor’s Veterans’ Employment and Training Service (“VETS”) published in the Federal Register a Request for Information on “Black Veterans and Good Jobs.” VETS is “seeking information from the public regarding evidence on Black veterans’ experience transitioning from military to civilian employment and veterans’ access to good jobs and meaningful careers.” The agency stated it published this RFI “to gather information to continue its efforts in building a strong knowledge base on the employment outcomes and experiences of Black transitioning service members (TSMs) and veterans to inform and improve veteran policies and programs.”

Comments on this RFI are due August 20, 2024. Instructions on how to submit comments are available here.

New Publications

New Publications

Tuesday, June 18, 2024:  The U.S. Equal Employment Opportunity Commission announced new resource on “Promising Practices for Preventing Harassment in the Construction Industry

Looking Ahead:
Upcoming Date Reminders

We added one  NEW  item 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

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)

July 17, 2024: Deadline for comments on OFCCP’s Proposed Changes to its Construction Compliance Review Scheduling Letter, Itemized Listing, and Construction Contract Award Notification Requirement Form

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

 NEW  August 20, 2024: Comments due on US DOL VETS’ Request for Information on “Black Veterans and Good Jobs”

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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