The “OFCCP Week in Review” is a simple, fast and direct summary of relevant happenings in the OFCCP regulatory environment published every Monday. Here are this week’s developments:
May 28, 2015: USDOL issued “Proposed guidance” for EO 13673 – Fair Pay and Safe Workplaces: The US Department of Labor published in the Federal Register (80 FR 30574) a 20 page “Proposed guidance” to assist federal Executive Branch contracting agencies to eventually implement Executive Order 13673 which President Obama signed July 31, 2014, directing, among other things, The United States Secretary of Labor to prepare the “guidance.” The USDOL guidance directs federal Executive Branch contracting agencies to not award (or renew) federal contracts to companies seeking very large federal contracts or federal subcontracts (valued at more than $500,000) if the contracting agency were to deem the company bidding (or seeking to renew) the federal contract/subcontract not sufficiently ‘responsible’ based on the bidder’s report and certification of employment law violations of which the bidding (renewing) company has been accused in the 3 years before the bid (or renewal request). Moreover, prime federal contractors and covered subcontractors would be responsible to monitor the employment law compliance history certifications of any covered federal subcontractors. Federal subcontractors will most likely have to certify and report their labor law compliance history directly to USDOL Agency Labor Compliance Advisors who will be hired to advise agency compliance officers which prime contractors will have to terminate the contracts of their ‘non-responsible’ subcontractors. A 60-day public comment period is available allowing federal contractors the opportunity to submit comments on the proposed guidance to and through July 27, 2015.
May 27, 2015: OFCCP developed sample AA Web Page: OFCCP announced on its website that it had developed a sample Affirmative Action Web Page for federal contractors. Included there now are sample “transition AAPs” for Section 503 and Section 4212 plans that show OFCCP’s view of how to address the regulatory requirements in a contractor’s first plan since OFCCP’s Section 503 and Section 4212 regulations went into effect on March 24, 2014. A sample EO 11246 Affirmative Action Plan can also be found on the new web page.
Very important note: The Section 503 transition plan shows ‘Outreach and Positive Recruitment’ samples and includes the ‘listing’ and ‘posting’ of jobs with the local ESDS. After contacting the OFCCP National Office, I spoke with Naomi Levin (OFCCP’s point person on Section 503 policy) and was told that was strictly an idea that a contractor could use for OUTREACH purposes only – there is NO listing or posting requirement pursuant to Section 503, of course. Remember, you may find Section 4212’s listing requirement at 41 CFR § 60-300.5(a)2 and (a)3 – part of Section 4212’s ‘Equal opportunity clause’.. By contrast, you may find the outreach and positive recruitment requirements at 41 CFR § 60-300.44(f)(2) [Section 4212] and 41 CFR § 60-741.44(f)(2) [Section 503] – part of the ‘Required contents of affirmative action programs’ sections found in both of OFCCP’s Section 4212 and Section 503 regulations.
May 27, 2015: OFCCP settles hiring discrimination case with Oral Arts Laboratory: The OFCCP found Oral Arts Laboratory discriminated against 83 women and 19 African Americans who were rejected for dental lab technician jobs in Huntsville, AL. The complaint also included 57 men who were denied shipping positions. As part of the settlement, Oral Arts must offer jobs to at least 19 of the original class members as openings become available. Shipping positions were also found to be stereotyped as ‘female jobs’ and male applicants were rejected. A dexterity test was used to help in the selection of dental lab techs and the test had not been validated.
May 28, 2015: DoD, GSA and NASA propose to amend the Federal Acquisition Regulation (FAR) to implement EO 13673 – Fair Pay and Safe Workplaces: The Department of Defense, the General Services Administration and the National Aeronautics and Space Administration are proposing to amend the Federal Acquisition Regulation to implement Executive Order 13673 – Fair Pay and Safe Workplaces. The proposed regulations are designed to improve contractor compliance with labor laws and increase efficiency and cost savings in Federal contracting. Certain labor violations over the previous three years must be disclosed and those disclosures will be considered, along with any mitigating circumstances, as part of the decision on whether to award or extend a federal contract. The proposed regulations will be open for public comment for 60 days through July 27, 2015 and can be submitted here. Submit comments by searching for “FAR Case 2014-025.” Select the link “Comment Now” that corresponds with “FAR Case 2014-025.”
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.
Reminder: If you have specific OFCCP compliance questions and/or concerns or wish to offer suggestions about future topics for the OFCCP Week In Review, please contact your membership representative at 866-268-6206 (for DE members), or send an email to Candee Chambers at candee@directemployers.org with your ideas.
