OFCCP Week In Review: November 21, 2022

OFCCP Week In Review, authored by John C. Fox, Candee J. Chambers, and Cynthia L. Hackerott

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 Chambers and Cynthia L. Hackerott. In today’s edition, they discuss:

OFCCP Published Proposed Changes to Disability Self-Identification Form to Update Preferred Language for Specific Disabilities
U.S. House Passed Bi-Partisan Speak Out Act Clearing the Way to President’s Desk for Anticipated Signature
U.S. EEOC Formally Published Its Draft FY 2022-2026 Strategic Plan for Public Comment
U.S. Senate Committee Advanced Nomination of Richard Revesz to Head OMB’s Office of Information and Regulatory Affairs
Three Things That Will Happen to OFCCP and Other Federal Labor Agencies Once Republicans Take Control of the U.S. House of Representatives January 3, 2023
NLRB Chair & GC Sent Letter to Legislators on “Budget Crisis”
U.S. EEOC Commissioner Janet Dhillon Resigned, Noted Her Accomplishments as Chair
OFCCP Proposed Numerous Changes to Its Supply & Service Contractor ICRs, Including City-wide Audits and Promises to Jawbone Contractors to Use of Its Portal to Submit Scheduling Letter & Itemized Listing Responses
Looking Ahead: Upcoming Date Reminders

Wednesday, November 16, 2022: OFCCP Published Proposed Changes to Disability Self-Identification Form to Update Preferred Language for Specific Disabilities

Agency Also Revised Burden Estimates for VEVRAA and Section 503 Self-Identification Forms

OFCCP proposed changing its Voluntary Self-Identification of Disability Form (CC-305) to revise the list of disabilities to reflect the current preferred language for certain listed disabilities and to include additional examples. Contractors may wish to review OFCCP’s forthcoming list and compare any language references to these same disabilities appearing in your company’s writings to help you determine if you have any outdated names and references to various physical and mental disabilities.

OFCCP’s Rules at 41 CFR Section 60-741.42 implementing Section 503 of the Rehabilitation Act of 1973 require covered federal Government contractors to invite applicants and employees to self-identify whether they have a disability as defined in Section 503 (which definitions mirror exactly the definitions in the Americans with Disability Act). Moreover, since 2014, OFCCP has required federal Government contractors covered by OFCCP’s Rules implementing Section 503 to use OFCCP’s Form CC-305 form, without variation except as to formatting to permit digital display. OFCCP accomplishes this by using 41 CFR Section 60-741.42 (a)(2) and (b)(2) to require contractors to use a self-identification Form (both pre- and post-offer) that the Rule promises the OFCCP Director will publish on OFCCP’s Website.

We will alert you when OFCCP publishes its new form, if and when it does after OMB first approves OFCCP’s new Form CC-305.

For this proposal, OFCCP consulted with the U.S. Department of Labor’s Office of Disability Employment Policy (ODEP) on the current preferred language for the specific disabilities. The proposed revised form is available here. Written comments are due on or before January 17, 2023, and stakeholders may submit them here.

The proposal was part of a Federal Register notice containing OFCCP’s request to the Office of Management and Budget (OMB) to extend approval of its Veterans Self-Identification and Rehabilitation Act, Section 503 Self-Identification Forms. OMB’s current approvals for these ICRs expire on April 30, 2023, and May 31, 2023, respectively.

The Supporting Statement for the VEVRAA Information Collection Requirement (ICR) said that OFCCP is not proposing to collect any new information.

For the Section 503 ICR, OFCCP noted in its Supporting Statement that the proposed changes are part of “an overall effort to increase the response rate on the form.” In the proposed revised form, the OFCCP re-alphabetized the list of disabilities with the additional examples and current language. The agency also made “plain language” edits and minor formatting changes.

Timeline

To give federal contractors time to incorporate the revised form into their electronic systems, OFCCP will delay compliance with the revised form for 90 days after the reauthorization of this ICR. Contractors will therefore have 90 calendar days after OMB approves the new self-identification form to begin using it. In the meantime, contractors must continue to use the Form 305 OMB last approved in 2020 until OMB approves the revised form.

Adjustment to Burden Hours

OFCCP also decreased its burden hours estimates for the two ICRs due to “a decrease in the number of contractor headquarters and contractor establishments since the last authorization.” For the VEVRAA ICR, OFCCP requested OMB approval of 4,439,563 burden hours. That number is a decrease of 937,786 hours from the 2020 clearance, which approved 5,377,349 hours (over a 17% decrease in covered federal Government contractors). As to the Section 503 ICR, OFCCP requested approval of 3,650,074 burden hours. That number is a decrease of 776,767 hours from the 2020 clearance which approved 4,426,841 hours (also over a 17% decrease in covered federal Government contractors).

Additional Expert Tips and Information

For more background information on these self-identification requirements, including practice tips, check out the three-part blog series by our guest and legal expert, Alexa Morgan. Alexa is a partner at Fox, Wang & Morgan P.C. The three blogs are available here, here, and here.

Wednesday, November 16, 2022: U.S. House Passed Bi-Partisan Speak Out Act Clearing the Way to President’s Desk for Anticipated Signature

Legislation Would Limit Predispute Nondisclosure & Nondisparagement Agreements Regarding Allegations of Sexual Assault & Sexual Harassment

Official Seal of the United States Congress Via a bi-partisan vote, the U.S. House of Representatives passed the Speak Out Act (S.4524), and Congress will now send it to President Biden for signature. (The House vote was 315 to 109 (100 Republicans and all 215 Democrats who voted, approved the measure). It passed the U.S. Senate by unanimous consent on September 29. The bill was sponsored by Senator Kirsten Gillibrand (D-NY), with 14 co-sponsors from both parties).

This bill prohibits the judicial enforceability in federal, state, and tribal courts of contract clauses that limit the ability of signatories of the contract to report or discuss alleged acts of sexual assault or harassment that would harm the reputation of the other party to the contract, such as an employer. Such clauses are often referred to as predispute nondisclosure and nondisparagement agreements. The changes would apply to claims that arise on or after the date of enactment of the legislation, the Congressional Budget Office (CBO) explained in its November 15 cost estimate report.

“Over the past several decades, employers have broadened the use of NDAs and nondisparagement clauses, which can silence survivors, while shielding and allowing perpetrators to continue abusive behavior,” according to a November 14 OMB statement of the Administration’s support of the measure. “Over one-third of the U.S. workforce is bound by NDAs, even as one-in-three women report having faced sexual harassment in the workplace, and members of marginalized and underserved communities, including people of color, low-wage workers and LGBTQI+ individuals, are disproportionately impacted by workplace sexual harassment,” the statement continued.

The CBO stated that the anticipated enactment of the measure would have an insignificant effect on direct spending and revenues over the 2023-2032 period. The legislation would impose a private-sector mandate as defined in the Unfunded Mandates Reform Act, the CBO confirmed. (Unfunded mandates are controversial because they require states and/or private sector companies to change their practices or products causing them to incur compliance costs without any financial assistance from the federal government). However, the CBO could not determine whether the cost of that mandate would exceed the annual allowable threshold of $184 million in unfunded mandates in 2022 (adjusted annually for inflation).

Wednesday, November 16, 2022: U.S. EEOC Formally Published Its Draft FY 2022-2026 Strategic Plan for Public Comment

The U.S. Equal Employment Opportunity Commission (EEOC) published a notice in the Federal Register, to formally request public comment on the agency’s 33-page draft of its Strategic Plan for Fiscal Years (FYs) 2022-2026. The Commission first announced the draft plan on November 4, and public comments are due on December 5, 2022. This draft plan is still under review and subject to approval by the full Commission before becoming final, the EEOC cautioned in its announcement.

The Strategic Plan provides a framework for the EEOC’s strategic application of its enforcement activities. These plans direct the agency’s work and lay the foundation for the development of more detailed annual plans, budgets, and related program performance information in the future. The EEOC is currently operating under the Strategic Plan for FYs 2018-2022.

The Draft Plan Identifies Three Goals: Strategic Application of Enforcement Authorities, Discrimination Prevention, & Organizational Excellence

The Draft Strategic Plan for FYs 2022-2026 includes three strategic goals and objectives.

The first goal is to “combat and prevent employment discrimination through the strategic application of the EEOC’s law enforcement authorities.” The corresponding objectives are that the agency: (1) has a broad impact on preventing and remedying employment discrimination while providing meaningful relief for victims of discrimination; and (2) exercises its enforcement authority fairly, efficiently, and based on the circumstances of each charge or complaint.

The second goal is to “prevent employment discrimination and advance equal employment opportunities through education and outreach.” The corresponding objectives are that: (1) members of the public are aware of employment discrimination laws and EEOC enforcement actions and know their rights and responsibilities under these laws; and (2) employers, federal agencies, unions, and staffing agencies have the information and guidance necessary to advance equal employment opportunity, prevent discrimination, and effectively resolve EEO issues.

The third goal is to “strive for organizational excellence through our people, practices, and technology.” The corresponding objectives are that: (1) the EEOC achieves a culture of accountability, inclusivity, and accessibility; and (2) the agency’s resources align with priorities to strengthen intake, outreach, education, enforcement, and service to the public to protect and advance civil rights in the workplace.

It also “presents clear and realistic strategies for achieving each of the three strategic goals and identifies performance measures to track the EEOC’s progress as it approaches FY 2026,” the Commission stated.

Wednesday, November 16. 2022: U.S. Senate Committee Advanced Nomination of Richard Revesz to Head OMB’s Office of Information and Regulatory Affairs

By a 9-2 vote, the U.S. Senate Homeland Security and Governmental Affairs Committee reported favorably on the President’s nomination of Richard Revesz to be Administrator of the Office of Information and Regulatory Affairs (OIRA) within the White House Office of Management and Budget. The OIRA is the central authority for the review of Executive Branch regulations, approval of government information collections, the establishment of government statistical practices, and coordination of federal privacy policy.

Mr. Revesz’s nomination at this time to fill this very important position in the White House left vacant after the President has been in office for almost two full years is one of the first trail signs of how the second half of President Biden’s four-year tenure will now be different following the Democrats coming loss of control of the U.S. House of Representatives. Specifically, the White House is preparing, as it now must, to pivot away from attempting to pass statutes embodying the President’s policy points of view to trying to force White House policy initiatives through formal Rulemakings originating with the federal Executive Branch agencies that the President controls. With the Democrat’s coming loss of control of the U.S. House of Representatives (at Noon on Tuesday January 3) to Republicans who may now block every hoped-for Democrat legislative bill Republicans do not also favor, the White House is now actively gearing up to operate through the federal Executive Branch agencies.

A former law clerk for U.S. Supreme Court Justice Thurgood Marshall, Mr. Revesz is currently the AnBryce Professor of Law and Dean Emeritus at the New York University (NYU) School of Law. He is noted for his work in the fields of environmental and regulatory law and policy.

What Does the OIRA Do?

Congress established the OIRA in 1980 at the behest of then President Jimmy Carter (D) through the Paperwork Reduction Act (PRA) (44 U.S.C. Section 35). President Carter favored a smaller federal government driven by quantitative measures and cost-benefit analyses of all major federal programs expending taxpayer dollars. OIRA is currently comprised of six subject matter branches employing approximately 45 full-time career civil servants. In addition to reviewing government collections of information from the public under the PRA, the OIRA reviews draft proposed and final regulations under Executive Order 12866 and develops and oversees the implementation of government-wide policies in the areas of information policy, privacy, and statistical policy. In addition, OIRA oversees agency implementation of the Information Quality Act (44 U.S.C Section 3516), including the peer review practices of agencies.

Thursday, November 17, 2022: Three Things That Will Happen to OFCCP and Other Federal Labor Agencies Once Republicans Take Control of the U.S. House of Representatives January 3, 2023

U.S. House of Representatives Seal Assuming the polarization of Democrats and Republicans continues on Capitol Hill as we have seen for at least the last 14 years (and increasing with each administration), we can expect Republicans and Democrats to continue to vote in party-driven blocks (with occasional defectors on both sides of the aisle on specific issues).

The Democrat’s loss of control of the House of Representatives has these predictable results:

1. OFCCP and federal agency labor agencies will likely all experience either a flat budget or reduced budget with employee headcount reductions to follow. Some federal agencies, like the NLRB with relatively long-serving employees and relatively low turnover, will likely be forced to undergo Reductions in Force (RIFs) to reduce their headcount. (See our related story, below, re the NLRB’s request last week to the Congress for an emergency supplementary budget to avoid an otherwise coming RIF).

Other agencies like OFCCP, with very high employee turnover (lately averaging 20+% per year) will not need to declare a RIF since the agency can absorb the coming reduced headcount through its high voluntary attrition.

Procedurally, the House and Senate both pass budgets for the federal Executive Branch agencies and then try to reconcile all differences between the two legislative bodies. So, the House can heavily influence the federal agency budgets since it must agree with the Senate as to the budget for the federal Executive Branch agencies.

If the Senate and the House are unable to reconcile their differing views on the budget for any given fiscal year, the historical practice has been to avoid shutting down the federal government by passing a “Continuing Resolution” (“CR”). CRs maintain the federal agency’s budget at the prior year’s level. However, a CR almost always drives an employee headcount reduction in every agency. See our October 3, 2022 Week In Review story discussing the FY 2023 CR currently in effect.

This seeming counter-intuitive result typically occurs for two major reasons:

Federal agency costs INCREASE in most fiscal years as operational costs increase, especially pension payments (as more employees retire and pension payment obligations also increase), leasehold expenses increase and the costs of supplies increase. In OFCCP’s case, its annual cost increases often average $2 million. In round numbers, it costs approximately $1 million to employ about 10 Compliance Officers. So, if the Congress imposes a CR, and OFCCP expenses increase year-over-year by $2 million, the agency must economize by that amount and will typically take the hit in headcount…lowering it by about 20 COs in the case of a $2 million budget shortfall. However, a special problem affecting the federal agencies this year is an almost 10% inflation since the beginning of the last Fiscal Year. In OFCCP’s case, a 10% increase in approximately $30 million of non-payroll and non-leasehold expenses would increase OFCCP’s budget for the coming fiscal year by approximately $3 million just to stay even with its budget last year (or the budget OFCCP needs to fund about 30 Compliance Officers).
Most agency budgets are dominated by payroll costs (about 70% of OFCCP’s budget, for example, is typically consumed by payroll costs). When it comes time to re-allocate existing budget monies, most operational costs are both too small to cover the budget shortfall generated by the annually increasing costs and are typically fixed costs at any rate. The exception to that, as in the private sector, is the travel budget…typically an early budget casualty when OFCCP needs to economize. However, in OFCCP’s case, it has long ago abandoned the vast majority of on-site audits. As a result, OFCCP has already reduced its travel budget to a relatively insignificant percentage of OFCCP’s annual discretionary spending budget.

2. The federal Executive agencies will now become the primary channel for Biden Administration policymaking since the Congressional statutory route will be foreclosed come January 2023 and for the last two years of the President’s four-year term. (Please see our related below story about the nomination of a new OIRA federal agency regulatory director for OMB to help push through needed Rulemakings).

Here’s the rub, though. The Biden White House early on in the beginning of its Administration realized that even though its fellow Democrats controlled the U.S. House of Representatives they did not control the U.S. Senate. The White House thus realized it did not have the ability to pass the President’s liberal agenda, and rather had to broker bipartisan statutes for the most part.

So, the White House decided to try to push its policy agenda through the federal agencies as quickly as possible. The White House sought to avoid the slow-moving and resource intensive Administrative Procedure Act procedures. A further downside for the White House is that APA Rulemaking also necessarily involves the public in the policy deliberations of the federal Executive agencies and thus impinges on the policy directions the White House wants to move (and also further slowing the White House down).

Now, the intensity of the White House’s resort to federal agency policy making through short-circuited agency policy-implementation procedures will increase. This will shift the burden to employers and to federal contractors to resist not properly baked federal agency policy initiatives. Contractors will do so either by suing the OFCCP and any other federal agencies which by-pass the APA, or by simply refusing to comply in audits or as to other purported agency “requirements” (like providing unauthorized information/data to OFCCP or providing the data in either electronic or digital format: i.e., via the OFCCP Portal).

Also, see our September 7, 2021 DE Week In Review Blog which went viral 14 months years ago pointing out similar issues with the OFCCP’s AAP Verification Portal when the APA was bypassed in its entirety.

See another of our related stories, above, discussing OFCCP’s new proposal this week to seek to extend OFCCP’s every three-year Information Collection Request (ICR) to allow OFCCP to continue to compel federal Government contractors to develop Affirmative Action Plans for Minorities and Women. Hopefully the OFCCP will not bypass the Administrative Procedure Act with this and other very substantive policy initiatives.

It is likely many of the federal agencies going forward, may short-circuit the APA and associated public involvement in policymaking since the Congressional legislative route remains choked and now blocked more than was previously the case during the first two-years of the Biden Administration.

3. The Congressional Review Act will not be available to Republicans to stop federal agency Rulemakings Republicans do not like.

We described the Congressional Review Act (“CRA”) tool in a February 2, 2017 DirectEmployers Week in Review story as the Congress used it to withdraw and rescind the Obama Administration’s so-called federal government contractor “Blacklisting “ Rule.

In a nutshell, the CRA allows the Congress to withdraw and rescind a federal agency Final Rule if (a) both houses of Congress pass a Resolution to rescind the at-issue Rule as inconsistent with the sense of the House and Senate; and (b) it does so within 60 days of the date the Rule became legally final or during the first 60-days of the arrival of a new Congress.

However, in good news for the Biden federal Executive Branch agencies, the failure of Republicans to also win control of the U.S. Senate means no CRA rescissions can occur (for at least the next two years). This development should instill confidence in the federal Executive Branch agencies to press forward with APA Rulemakings to install the President’s policy initiatives within the boundaries of the statutory authorities the Congress has delegated to them to enforce. But will they?

Friday, November 18, 2022: NLRB Chair & GC Sent Letter to Legislators on “Budget Crisis”

The Board Likely to Pursue Staff Furloughs Absent Budget Increase, Agency Officials Said

Official Seal for the National Labor Relations Board (NLRB) The Chair and General Counsel (GC) of the U.S. National Relations Board (NLRB) sent a letter to leaders of the applicable House and Senate appropriations subcommittees to “alert” them to a “budget crisis” at the NLRB, according to a Board press release. “The Agency’s current funding level is impairing our ability to maintain staff capacity, both in headquarters and across 48 field offices,” NLRB Chair Lauren McFerran and GC Jennifer Abruzzo stated in the letter.

Chair McFerran and GC Abruzzo sent the two-and-a-half-page letter to both the Democratic Chairs and Republican Ranking Members of the Senate Committee on Appropriations’ Subcommittee on Labor, Health and Human Services, and Education and the House Committee on Appropriations’ Subcommittee on Labor, Health and Human Services, and Education. “The NLRB has received the same nominal appropriation of $274.2 million since [fiscal year (FY)] 2014. Adjusting for inflation, we have lost one-quarter of our purchasing power over the past nine years,” the Board officials wrote.

Staff Reductions Likely, Absent Funding Increase

“The Agency’s current funding level is impairing our ability to maintain staff capacity, both in headquarters and across 48 field offices. Understaffing ultimately affects employers, employees, labor organizations, and practitioners with cases before the Agency,” they reported. While the Board “has already implemented a hiring freeze . . ., without additional funding, [it] will likely be forced to pursue furloughs” of its 1,200 career staff,” Chair McFerran and GC Abruzzo asserted. “Further erosion of the Agency’s staff and resources will continue to harm case processing to the significant detriment of both employers and employees,” they warned.

NLRB Has Less Margin to Absorb Increasing Costs, Officials Claim

“While increasing costs are not unique to the NLRB, we have less margin to absorb these increases than other agencies,” Chair McFerran and GC Abruzzo continued. “Unlike the Federal Mediation and Conciliation Service, National Mediation Board, and worker protection agencies within the Department of Labor, the NLRB did not receive an increased appropriation in the FY2022 omnibus. Collectively, appropriations for other worker protection agencies increased 8 percent from FY2014 to FY2022 while NLRB funding remained flat,” they explained.

Staff Attritions and Operational Efficiencies Can No Longer Absorb Cost Increases

“At this point, the Agency has exhausted its ability to absorb cost increases through staff attrition and operational efficiencies,” the officials emphasized. “Labor costs already comprise 80 percent of the NLRB’s budget” and while the agency productivity has increased, existing “staff cannot keep up with an increasing workload,” they explained.

“The number of unfair labor practice (ULP) case dispositions per field staffer increased 7 percent from FY2014 to FY2022, but the number of ULP filings per field staffer increased 39 percent over the same period,” Chair McFerran and GC Abruzzo pointed out. “Similarly with Board cases, median case processing time decreased 14 percent last year. However, the number of cases pending before the Board still increased 28 percent,” they added.

Specific Expenses of Concern Include Upcoming Federal Pay Increases, Non-Labor Inflation & Upcoming Lease Actions

Asserting that “[t]he vast majority of the Agency’s work is routine and noncontroversial,” the officials went on to list three specific expenses of concern:

2023 federal pay increase: The Board expects to cover a 4.6-percent pay increase for its employees, beginning in January 2023. At current staffing levels, this will increase the agency’s total labor costs by $10.2 million in FY2023.
Non-labor inflation: Non-labor costs comprise 20 percent of the NLRB’s budget. Assuming 8.5% inflation, the Board officials expect $4.8 million in additional costs without operational changes.
Upcoming lease actions: The General Services Administration has informed the NLRB that it must relocate three field offices in FY2023 at an expected cost of $3.7 million. The affected field offices include Subregion 17 (Kansas City1), Region 22 (Newark), and Region 31 (Los Angeles).

“These additional expenses are effectively beyond the Agency’s control,” Chair McFerran and GC Abruzzo maintained. Moreover, the NLRB “needs additional funding in FY2023 to simply maintain current operations without any investments in critical infrastructure and cybersecurity needs,” they explained.

NLRB Union Had Already Been Pleading for Increase, Claiming Threat of “Budget Armageddon”

Last week, the NLRB’s Union (NLRBU) posted a Twitter thread pleading for a budget increase. “With fixed costs rising by ≥4.6%, the NLRB is facing budgetary Armageddon. The agency is already in a hiring freeze, and for the first time in a decade we are hearing rumblings of employee furloughs,” the first tweet in the November 10 thread began. “We are DESPERATELY asking Congress to increase our budget in the coming weeks,” the union continued.

“It is increasingly possible that the NLRB will have to furlough employees at a time while our caseloads are skyrocketing. This is the crisis in labor law enforcement we have warned of,” the NLRBU added.

Friday, November 18, 2022: U.S. EEOC Commissioner Janet Dhillon Resigned, Noted Her Accomplishments as Chair

Commission Now Has Even Number of Republicans (2) and Democrats (2) Until the U.S. Senate Approves a Replacement

On Monday, November 14, 2022, U.S. EEOC Commissioner Janet Dhillon’s letter to President Biden, stating her resignation from the Commission, effective November 18, 2022, became public. President Trump nominated Ms. Dhillon to the Commission on June 29, 2017; the Senate confirmed her for the role on May 8, 2019. She became EEOC Chair on May 15, 2019, and her term as Chair ended on January 20, 2021, after which she remained a Commissioner with a term lasting through July 1, 2022.

Under Commission Rules, sitting Commissioners may remain in office until the end of the calendar year in which their term of office terms out, if the U.S. Senate does not previously confirm the President’s Nominee to replace a departing Commissioner.

In her resignation letter, Dhillon highlighted some of her accomplishments as Chair. These include:

Increased transparency of the Commission’s activities;
Record recoveries for worker’s who faced discrimination; and
Various improvements to agency operations, including key innovations and compliance assistance.

What’s Next for the Commission?

While Ms. Dhillon’s term expired on July 1, 2022, she could have remained on the Commission through the end of the calendar year, or until the Senate confirmed her replacement, whichever came first as noted above. Now that she has resigned, the five-Member Commission has an even number of Republicans and Democrats until the Senate approves a replacement for this fifth Commission seat.

President Biden’s current nominee to replace Ms. Dhillon on the Commission is Kalpana Kotagal. On May 25, 2022, the U.S. Senate Committee on Health, Education, Labor, and Pensions “failed to report favorably” on her nomination following a May 10 hearing. In September, we reported that Ms. Kotagal’s nomination is a “Political Rugby Scrum in Progress” with the Commission majority at stake. If confirmed, Ms. Kotagal’s term would expire on July 1, 2027.

There are now remaining (as of today) only 18 more “Legislative Days” in this 117th Congress, Second Session before it adjourns (on Wednesday December 21): November 28, 29 & 30, 2022 and December 1-21, 2022 (15 weekdays). The 118th Congress will thereafter assemble to be sworn in and start its work on Tuesday January 3, 2023. Senate Majority Leader Chuck Schumer (D-NY) will not schedule Ms. Kotagal’s Nomination for a full Senate Floor vote unless he knows he has 50 Democrats ready to vote for her. If he does not, or he calls for the vote and she does not pass any scheduled Senate Floor vote during this Second Session of this 117th Congress, her Nomination will fail and expire upon the Senate’s adjournment for the year and the Session (on December 21, 2022).

That would then leave it to President Biden to start all over again and either renominate Ms. Kotagal in the next Congress or nominate a different candidate if the Democrat leadership in the Senate viewed Ms. Kotagal’s prospects as too poor to pass a Senate floor vote in the next U.S. Senate.

If Hershel Walker, the Republican challenger for a U.S. Senate seat were to win his December 6, 2022 run-off election in Georgia, the U.S. Senate would then again be divided 50-50. If that were to occur, it is doubtful that Senate Majority Leader Schumer would be able to push Ms. Kotagal’s nomination through in either this Session of Congress or even in the new one. Rather, some serious “log-rolling” not yet able to be deployed thus far on behalf of Ms. Kotagal’s would be necessary to cause either the currently doubtful Democrat(s) blocking her path forward to a successful 50-50 U.S. Senate Floor vote (VP Harris would then cast the “tie-breaker”) to change position to now vote for Ms. Kotagal’s nomination. (All currently seated 50 Republican Senators have opposed Ms. Kotagal’s nomination with at least one Democrat also holding out on her nomination).

However, if Raphael Warnock (D), the junior U.S. Senator incumbent seeking to hold on to his seat in the hotly contested Georgia election were to prevail in the coming December 6, 2022 “run-off,” Democrats would in the next Congress control the U.S. Senate 51-49. That would then allow President Biden to perhaps re-nominate Ms. Kotagal in the next Congress. If so, Ms. Kotagal would then almost certainly survive a Democrat-controlled Senate Health, Education, Labor and Pensions Committee Confirmation Hearing. A successful Committee confirmation Hearing would then again qualify Ms. Kotagal to again advance to the U.S. Senate for a full Senate Floor vote. However, Senator Schumer would not call for a full Senate Floor vote unless he believed he could muster at least 50 votes to confirm Ms. Kotagal from the new Senate. But, the odds rise for Ms. Kotagal’s nomination at that point because Senator Schumer would then have 51 Democrat U.S. Senators this hypothetical assumes would be in place. So, if Senator Warnock were to win re-election (bringing the next U.S. Senate to 51 Democrats and 49 Republicans to make this hypothetical illustration real), Senator Schumer could then tolerate one Democrat defection (to then allow for a 50-50 tie vote: 50 Democrats vs 49 Republicans and 1 Democrat either voting against Ms. Kotagal or abstaining). At that point, VP Harris could/would cast the “tie-breaker” vote to bring the Senate vote tally to 51-50 and seat Ms. Kotagal on the Equal Employment Opportunity Commission.

Monday, November 21, 2022: OFCCP Proposed Numerous Changes to Its Supply & Service Contractor ICRs, Including City-wide Audits and Promises to Jawbone Contractors to Use of Its Portal to Submit Scheduling Letter & Itemized Listing Responses

OFCCP published a notice in the Federal Register seeking public comments on several changes to its information collection requirements (ICRs) for Supply and Service Contractors in conjunction with its request for Office of Management and Budget’s (OMB) approval to continue the ICRs PURSUANT TO the federal Paperwork Reduction Act. OMB’s current approval for these ICRs expires on April 30, 2023. The proposal includes significant changes to OFCCP’s Scheduling Letter and Itemized Listing – including five new items. However, the notice itself only lists the substantive proposed changes. Details on the changes were revealed in the 31-page Supporting Statement that OFCCP submitted to OMB. The proposed revised Scheduling Letter is available here.

Comments on the proposed changes are due on Tuesday, January 20, 2023, and can be submitted here.

Editorial Note 1: The federal Paperwork Reduction Act is a federal statute independent of the federal Administrative Procedure Act. The Paperwork Reduction Act requires OMB (an arm of the White House) to approve all federal agency data or information collected from 10 or more members of the public to avoid duplication of effort among the federal Executive Branch agencies subject to the President’s control. OMB also undertakes cost-benefit evaluations of whether the number of “burden hours” the agency estimates will impact the public is justified by the objective of the data/information collection.

Editorial Note 2: The informal comments the OMB receives in response to OFCCP Federal Register requests for public comment DO NOT SUFFICE OR REPLACE the need for a federal Executive Branch agency like OFCCP to also publish for formal public “Notice and Comment” PURSUANT TO the federal Administrative Procedure Act (“APA”) any information collection impacting the regulated community. See, The FIRESTONE SYNTHETIC RUBBER & LATEX CO., a division of the Firestone Tire & Rubber Co., and Koppers Company, Inc., Intervenor, v. F. Ray MARSHALL, Secretary of Labor and Weldon J. Rougeau, Director, Office of Federal Contract Compliance Programs, 507 F. Supp. 1330 (1981) [OFCCP is required to publish a formal Rule pursuant to the APA regardless of whether OFCCP intends the Rule to be a “Legislative Rule” carrying the full “binding force and effect of law” as though issued in a statute by the U.S. Congress that the OFCCP intends to require of covered federal Government contractors and enforce against them, or whether the Rule is merely an “Interpretive Rule” OFCCP did not intend to enforce against covered federal Government contractors but rather intended to merely explain one or more of OFCCP’s existing Rules that would have a “substantial impact” on covered federal Government contractors.] See 507 F. Supp. 1334-1336, in particular, in the Firestone decision.

It’s a Texas Two-Step: In either case, whether OFCCP intends a Legislative Rule or merely an Interpretive Rule it must FIRST publish for formal Notice and Comment to the public PURSUANT TO the APA these new requirements it seeks to impose on federal contractors. Then, once it publishes a Final Rule pursuant to the APA, OFCCP needs to THEN seek OMB’s approval of the paperwork impact of its Final APA Rule pursuant to the Paperwork Reduction Act. (For example, in October 1999, OFCCP Director Shirley Wilcher published Final Rules pursuant to the Administrative Procedure Act overhauling OFCCP’s AAP development requirements for Minorities and Women. Later in April 2000, OMB then approved the paperwork impacts expected to occur from OFCCP’s Final AAP Rules and they only THEN became legally effective).

Moreover, OFCCP will be UNABLE to enforce any part of these new requirements should it fail to publish them for formal APA Notice and Comment. Some covered federal Government contractors will simply ignore the purported new requirements should OFCCP seek to enforce them in audits or otherwise. In addition, any attempted OFCCP enforcement of these new requirements will provide proof positive that the agency intended them to be Legislative Rules (necessary for OFCCP to enforce ANY requirement it seeks to impose on federal contractors).

In sum, OFCCP first needs APA Notice and Comment and a “Final Rule,” and thereafter Paperwork Reduction Act final approval from OMB. OFCCP has always followed the law in previous Administrations, with only a few notable lapses in conformity with the APA after the Firestone decision taught OFCCP (40 years ago) the way forward.

Proposed Revisions to the Scheduling Letter

Proposed revisions to the compliance review scheduling letter include:

Page One – email option: Adding in an option for the scheduling letter to be issued via email with a read receipt requested.

Page Two – post-secondary institutions and contractors with “campus-like settings”: OFCCP now seeks to change its historic approach to audit which has been to audit only by “AAP establishment.” Specifically, as to post-secondary institutions and contractors with “campus-like settings” in which the contractor maintains multiple AAPs for the same campus, OFCCP now seeks to require these contractors to submit the requested information for all AAPs for that campus located in that city. OFCCP has already sought to purportedly change its audit rules for post-secondary institutions via a recent Scheduling Methodology. OFCCP would now like to retroactively receive OMB Paperwork Reduction Act authority to so state in its audit Scheduling Letter (which OMB must approve since OFCCP sends it to 10 or more Members of the public).

OFCCP hopes that federal contractors will believe that OMB approval of the agency’s change of its audit paperwork is sufficient to ALSO effectuate OFCCP’s change of this longstanding audit practice and will thus not resist in audits. The change to OFCCP’s proposed new audit Scheduling Letter makes clear that at the outset of a Compliance Review for post-secondary institutions that OFCCP will seek to insist that contractors submit all their AAPs for campuses, schools, programs, buildings, departments, or other parts of the institution located in that city.

With this proposed revised Compliance Review audit Scheduling Letter, OFCCP also seeks to require covered federal Government contractors with campus-like settings, such as hospitals and information technology companies, to similarly produce all AAPs for the campus building(s) located in that city. Collecting all AAPs for a campus provides a more efficient use of agency resources and promotes a broader understanding of an organization’s equal opportunity programs through a holistic review of the campus, OFCCP told OMB. OFCCP acknowledges that contractors may have additional questions on the requirements of post-secondary institutions and contractors with “campus-like settings” and welcomes public comments on what additional guidance OFCCP can provide on this topic.

Page Two – electronic submission: Revising submission instructions to request contractors submit their AAPs and itemized listing information electronically. Contractors will be provided with an email address where they may send information and documents in response to OFCCP audit inquiries. OFCCP reports that it will provide an OFCCP point of contact with instructions to the contractor to contact this POC if the contractor wants to discuss a different electronic submission method. The option to submit via the United States Postal Service (USPS) or via other delivery services is also available.

Page Two – revised enforcement warning: OFCCP proposes to revise existing audit Scheduling Letter language to state that OFCCP may initiate enforcement proceedings if the requested information is not provided within 30 calendar days of the contractor’s receipt of the letter.

Other language changes – The proposed changes would also include: (1) revising all references to “DOL” or “Department of Labor” to state “U.S. Department of Labor;” and (2) making other minor language changes for clarity and renumbering of items to account for additional requirements.

Electronic Scheduling Letter Delivery

Prior to March 2020, OFCCP sent all audit Scheduling Letters via USPS Certified Mail. This method allowed for real-time delivery tracking and provided official confirmation of delivery through the return receipt “green card,” the agency noted. Due to the pandemic, in March 2020, all OFCCP personnel were converted to a mandatory full-time telework status, and OFCCP instructed all its field offices to issue all audit Scheduling Letters via e-mail. This practice proved successful and allowed OFCCP to continue scheduling Compliance Reviews despite the remote working conditions, the agency stated. It also provided benefits to the agency since there was no additional cost to print and mail, allowed for quicker delivery and confirmation of receipt, and contributed to the goal of becoming a paperless agency. Because of this success, OFCCP proposes to retain the option to issue audit Scheduling Letters electronically.

Portal Submission

In addition to the option for contractors to submit their documents via email, OFCCP proposes adding an option for contractors to use a different electronic submission method upon request to the applicable OFCCP point of contact. According to the agency, it “currently maintains a secure software platform which allows individuals to transfer files securely. Additionally, OFCCP continues to develop the Contractor Portal functionality, including the ability for contractors to use it for uploading their AAPs.”

OFCCP seeks to expand its Compliance Review audit Scheduling Letter by suggesting it has always required contractors to submit compensation data for “temporary” employees. “Clarification” of this issue, OFCCP suggests, will reduce the number of follow-up requests that OFCCP makes to contractors when conducting Desk Audits and thus improve the efficiency of the agency’s Compliance Evaluations.

Proposed Changes to Itemized Listing

For details on OFCCP’s rationales for the following proposed changes, see OFCCP’s Supporting Statement, pages 11-19 which it submitted to OMB to assist OMB’s consideration of its numerous changes and requested “clarifications.” The proposed revisions to OFCCP’s Itemized Listing (attached to OFCCP audit Scheduling Letters of Supply and Service Contractors and which summons most of the documents OFCCP is authorized to gather during its Desk Audit) include:

Item 4 – OFCCP proposes to expand the scope of Item 4 (to its Itemized Listing) to include all of 41 CFR § 60-2.14. Accordingly, this item, as proposed, would read as follows:

“For each job group, a determination of minority and female availability pursuant to 41 CFR § 60-2.14.”

Item 7 (new item) – OFCCP proposed adding a new item (to its Itemized Listing) requesting a list identifying all action-oriented programs designed to correct any problem areas identified pursuant to 41 CFR § 60-2.17(b).

Editorial Note: This proposal, if contractors follow it, will add substantially to a contractor’s and AAP vendor’s time and costs needed to prepare Affirmative Action Programs for Minorities and Women.

Item 8 (previously Item 7) – OFCCP proposes revising Item 8 (of its Itemized Listing) to provide more specificity on the documentation a contractor must submit regarding their Section 503 outreach and positive recruitment efforts. Specifically, OFCCP proposes to add “The documentation should also indicate whether you believe the totality of your efforts were effective” to the current language.

Editorial Note: This proposal, if contractors follow it, will add substantially to a contractor’s and AAP vendor’s time needed to prepare Affirmative Action Programs for Individuals with a Disability.

Inclusion of the proposed language will result in the following proposed Item 8:

“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 were 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).”

Item 11 (previously Item 10) – OFCCP proposes revising Item 11 (of its Itemized Listing) to provide more specificity on the documentation a contractor must submit regarding their Section 503 utilization analyses.

The current scheduling letter request reads as follows:

“The utilization analysis evaluating the representation of individuals with disabilities in each job group, or, if appropriate, evaluating the representation of individuals with disabilities in the workforce as a whole, as provided in 41 CFR § 60-741.45. If you are six months or more into your current AAP year on the date you receive this listing, please also submit information that reflects current year progress.”

The agency proposed revising this item to the following:

“The utilization analysis evaluating the representation of individuals with disabilities in each job group, or, if appropriate, evaluating the representation of individuals with disabilities in the workforce as a whole, as provided in 41 CFR § 60-741.45. If any underutilization of individuals with disabilities is identified, provide a description of the steps taken to determine whether and where impediments for equal employment opportunity exist in accordance with 41 CFR § 60-741.45(e). Per 41 CFR § 60-741.45(e) and (f), this description shall include your assessment of personnel processes, the effectiveness of your outreach and recruitment efforts, the results of your affirmative action program audit, any other areas that might affect the success of the affirmative action program, and a description of action-oriented programs developed and executed to correct any identified problem areas. 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, provide the information that reflects your progress for at least the first six months of the current AAP year.”

Item 12 (previously Item 11) – OFCCP proposes revising Item 12 (of its Itemized Listing) to provide more specificity on the documentation a contractor must submit regarding their VEVRAA outreach and positive recruitment efforts.

Specifically, OFCCP proposes to add “The documentation should also indicate whether you believe the totality of your efforts were effective” to the current language. Inclusion of the proposed language will result in the following proposed Item 12:

“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 were 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).”

Item 15 (previously Item 14) – OFCCP proposes to add language to a new Itemized Listing para 15 that would clarify that OFCCP is seeking information regarding the VEVRAA hiring benchmark that the contractor establishment is using for the current AAP year. This is consistent with OFCCP’s current regulatory requirements, but OFCCP is merely adding this language for clarity, the agency stated. This language is in fact, however, moving forward what used to be portions of an On-Site Audit into the Desk Audit portion of OFCCP’s Compliance Review of the contractor’s establishment, as OFCCP On-Site audits are now almost as rare as hen’s teeth.

Item 16 (previously Item 15) – OFCCP proposes to add a request to what would be a newly numbered para 16 (of its Itemized Listing) to require post-secondary institutions to submit copies of their Integrated Postsecondary Education Data System (IPEDS) Human Resources Survey Component data collection reports for the last three years. Post-secondary institutions do not submit EEO-1 Reports to EEOC. The IPEDS is the equivalent of an EEO-1 Report for post-secondary institutions. Having this information from post-secondary institutions at the beginning of a compliance review will allow OFCCP to conduct more efficient analyses, the agency asserted.

Editorial Note: This is an odd request in that there are existing case law decisions allowing employers not to have to put on file with a federal agency that information already available to that agency in another part of the federal government. (And, yes, OFCCP’s existing practice of requesting three-years’ worth of EEO-1 history in audits of Supply and Service contractors also violates that “no duplicative burden rule” – especially odd in that OFCCP is the co-sponsor of the EEO-1 form and has the data physically within the agency.

Item 18 (previously Item 17) – OFCCP proposes minor language changes to what would be a newly numbered para 18 to clarify the applicable AAP periods.

Item 19 (new item) – OFCCP proposes to add a new item (to its Itemized Listing) to be numbered paragraph 19 requesting documentation of a contractor’s policies and practices regarding all employment recruiting, screening and hiring mechanisms, including the use of artificial intelligence, algorithms, automated systems, or other technology-based selection procedures.