OFCCP Week In Review: May 1, 2023

• OFCCP’s Controversial “Pre-Enforcement Notice & Conciliation Procedures” Final Rule Coming Soon: Ends Trump Era of Transparency
• California CRD Will Consider 2-Month Extensions on Labor Contractor Employee Reports Deadline
• Senate HELP Committee Advanced Nomination of Julie Su for U.S. Secretary of Labor
• OFCCP Slightly Modified Proposal to Revise Its Complaint Intake Procedures
• In Brief
• Looking Ahead: Upcoming Date Reminders

Wednesday, April 5, 2023: OFCCP’s Controversial “Pre-Enforcement Notice & Conciliation Procedures” Final Rule Coming Soon: Ends Trump Era of Transparency

OMB Approval Means Publication Imminent

Clearing the way for publication, the White House Office of Management and Budget (“OMB”) approved OFCCP’s Final Rule on “Pre-Enforcement Notice & Conciliation Procedures.” This item is also known as the “PDN Rule” with PDN standing for “Pre-Determination Notice.” According to the U.S. Department of Labor’s (“USDOL”) Fall 2022 Regulatory Agenda, the PDN Final Rule will modify certain provisions set forth in the (Trump OFCCP) November 10, 2020, Final Rule, “Nondiscrimination Obligations of Federal Contractors and Subcontractors: Procedures To Resolve Potential Employment Discrimination” and make other related changes to OFCCP’s pre-enforcement notice and conciliation process. (See our story on the November 2020 Final Rule here).

On March 22, 2022, OFCCP published its Notice of Proposed Rulemaking (“NPRM”) on this item in the Federal Register. Shortly after its publication, John Fox discussed the NPRM in a bonus blog, “OFCCP’s Proposed NPRM Walks Backwards Promising Less Transparency in Audits and Unknown, But Different (to come), Evidentiary Standards in Discrimination Investigations.” The NPRM comment period closed on April 21, 2022, and OMB received twelve comments. OFCCP submitted the Final Rule for OMB approval on December 21, 2022. The USDOL’s Fall 2022 Regulatory Agenda had slated March 2023 for the publication date (moved up from May 2023).

Friday, April 14, 2023: California CRD Will Consider 2-Month Extensions on Labor Contractor Employee Reports Deadline

Current Filing Deadline is May 10

Extensions Not Available for Payroll Employee Reports

Background Note: California law requires private employers of 100 or more employees and/or 100 or more workers hired through labor contractors to annually report pay, demographic, and other workforce data to the California Civil Rights Department (“CRD”)

New: Upon an employer’s request, the CRD will consider giving an employer up to a two-month extension to submit newly required “Labor Contractor Employee Reports,”  on workers labor contractors supply to companies the CRD stated in an FAQs update. The current filing deadline for California pay data reports covering Reporting Year 2022 is Wednesday, May 10, 2023. The CRD’s “enforcement deferral” will be up to and including Monday, July 10, 2023. Enforcement deferral periods are not available for pay data reports covering an employer’s payroll employees (“Payroll Employee Reports”).

To request an enforcement deferral period for a Labor Contractor Employee Report, employers must, beginning April 18, 2023, register in the online portal and fill out and submit a request form by May 10, 2023. The CRD will not consider requests submitted through any other method, such as email or phone call. Nor will CRD consider a request submitted by a third party on behalf of an employer, such as a Professional Employer Organization (“PEO”); the employer itself must submit the request for itself, and any enforcement deferral period will apply only to that employer.

How We Got Here

California law (SB 1162) requires the state’s private employers to annually report pay, demographic, and other workforce data to the CRD on both employees and workers supplied by contractors. The labor contractor reporting component is new for Reporting Year 2022.

Private employers with one hundred or more employees and/or one hundred or more workers hired through labor contractors must annually file a Payroll Employee Report and, where applicable, a separate Labor Contractor Employee Report. For more background, see our previous reports here, here, and here.

Wednesday, April 26, 2023: Senate HELP Committee Advanced Nomination of Julie Su for U.S. Secretary of Labor

Full Senate Vote Could Come This Week

Voting along party lines – 11-10, the U.S. Senate Health, Education, Labor, and Pensions (“HELP”) Committee advanced the very controversial nomination of Julie Su for U.S. Secretary of Labor for an eventual full Senate vote. Ms. Su has also been serving as the “Acting Secretary of Labor” since former Labor Secretary Marty Walsh left the Department of Labor last month. 

Last week, we reported that, during the HELP Committee’s hearing on her nomination, Republican Senators grilled Ms. Su over her record as head of California’s Labor and Workforce Development Agency (that state’s Department of Labor) and openly questioned her qualifications for the job. Meanwhile, the Democrats on the Committee expressed strong support for her nomination. Following Wednesday’s vote, Senator Bill Cassidy (R-LA), Ranking Republican on the HELP Committee released a statement with extensive details on his, and other Republicans, concerns about Acting Secretary Su’s background.

Whether Ms. Su’s nomination will win a full Senate vote in the closely divided Senate is still unclear. At least four key Senators who are Democrats or caucus with the Democrats are still uncommitted as to how they will vote, and Senator Dianne Feinstein (D-CA) still doesn’t have a firm return date from her health-related absence from the Senate.

In the event the full Senate rejects her nomination, Ms. Su would be the highest-ranking Biden nominee to fail a Senate floor vote.

Friday, April 28, 2023: OFCCP Slightly Modified Proposal to Revise Its Complaint Intake Procedures

Proposal Would Mimic EEOC Process, Seeks to Improve Efficiency

Public Comments Due May 30

Contractors have a second opportunity to comment on OFCCP’s proposal to modify its complaint intake procedures to mimic the Equal Employment Opportunity Commission’s two-step Charge intake process. OFCCP published a Federal Register Notice of a 30-Day comment period on this proposal that references OFCCP’s early January 18, 2023, almost identical 60-Day Notice of the proposal. The 60-Day comment period on the January 18 notice closed on March 20, 2023, with three public comments submitted. For the 30-Day comment period, OFCCP made three minor changes in the proposal, detailed below.

OMB also published a new 15-page OFCCP “Supporting Statement” to accompany this latest request for public Comments. This new Supporting Statement is dated April 24, 2023, but did not appear on the OMB website until May 1, 2023. Therein, OFCCP addressed the three public comments submitted during the 60-Day comment period (see pages 9 – 11 of the Supporting Statement).

In response to these public comments, OFCCP modified the proposal to:

• add a sentence to the proposed pre-complaint inquiry form stating that “submitting this inquiry form does not extend the time period for filing a complaint.”
• add spaces to the complaint form for the name and email address for a human resources point of contact and marked the fields as optional.
• provide special instructions to potential complainants who have 60 days or fewer in which to file a timely complaint. These instructions will direct them on how to expedite the pre-complaint inquiry process and file a formal complaint. OFCCP will provide these instructions on a designated page on OFCCP’s website. Additionally, the agency has added a notice to the “Important Deadlines” section of the instructions on the pre-complaint inquiry form to direct those who are within this timeframe to OFCCP’s website for special instructions.

The deadline for comments on the new notice is Tuesday, May 30, 2023. You may submit your Comments here or here. OMB approval for the current Complaint intake form (Form CC-4) and process expires on May 31, 2023. With this second Comment period ending on May 30, 2023, OFCCP is again cutting it close. OMB will most likely not have sufficient time to process OFCCP’s proposal before OFCCP’s current authorization for their existing Complaint Intake form expires. In such a case, OMB would normally simply extend OFCCP’s current authorization for 30 days to allow OFCCP and OMB the time needed to process the public Comments and take the needed action to finalize OMB’s response to OFCCP’s proposal.

[Note: Per the federal Paperwork Reduction Act, federal agencies must publish in the Federal Register both a 60-Day Notice and a 30-Day Notice to the public seeking comment for every Information Collection Request (“ICR”) approval an agency makes  to OMB. The 30-Day Notice is typically identical to the 60-Day Notice unless the agency intends changes to the collection due to:

• Comments received during the 60-Day comment period;
• Program adjustments;
• Changing respondent numbers; or
• Internal Agency review.

For more information, go to Digital.gov’s “Guide to the Paperwork Reduction Act.”]

In Brief

Monday, April 24, 2023: OFCCP Posted Correspondence Documents Related to Reporter’s EEO-1 FOIA Request

OFCCP added a section – “OFCCP Correspondence” – to the Freedom of Information Act (“FOIA”) portion of its website. That new section contains correspondence related to a reporter’s request for EEO-1 consolidated Component 1 Survey data. As readers are aware, in 2019, Center for Investigative Reporting [“CIR”] reporter Will Evans submitted a FOIA request seeking Type 2 (consolidated) EEO-1 reports from 2016 to 2020 for all federal contractors and first-tier subcontractors. On April 17, 2023, OFCCP released the first batch of EEO-1 files to the public. Our most recent, previous report on this ongoing saga is here.

The new section includes the multiple e-mail notices OFCCP sent to federal contractors informing them of their opportunities to object to the release of this data. It also has OFCCP’s communications to Mr. Evans, as well as OFCCP’s March 2023 responses to letters from House Education and the Workforce Committee Chairwoman Virginia Foxx (R-NC) and Attorney David J. Goldstein of Littler Mendelson, P.C.

Tuesday, April 25, 2023: U.S. EEOC, DOJ, CFPB & FTC Issued Joint Enforcement Statement on AI: More of the Same: All Talk-Talk

Using their “Bully Pulpits” to proselytize caution in the use of computer software tools relying in whole or in part on Artificial Intelligence to make or help make employment decisions, four federal enforcement agencies offered their voices, again, to the discussion. The Equal Employment Opportunity Commission (“EEOC”), the U.S. Department of Justice’s Civil Rights Division (“DOJ”), the Federal Trade Commission (“FTC”), and the Consumer Financial Protection Bureau (“CFPB”) banded together to issue a Joint Statement on Enforcement Efforts Against Discrimination and Bias in Automated Systems.

Rather than announcing new enforcement measures, the agencies instead “reaffirmed that their existing legal authorities apply equally to the use of new technologies as they do to any other conduct,” according to a DOJ press release regarding the Joint Statement. Along with the DOJ, each of the other four agencies also issued separate press releases, which included a discussion of that agency’s previous enforcement/guidance activities. The EEOC’s press release is here, the FTC’s release is here, and the CFPB’s release is here.

What lies behind this flurry of expressed federal agency concern are two unspoken policy issues unrelated to the specific AI tools emerging for use in the marketplace:

1. increasingly proficient AI tools will be more accurate in honing in on qualifications and excluding jobseekers lacking the skills, knowledge, education, or experience needed to perform the jobs for which they have applied; and
2. more workers (i.e. recruiters, pre-screeners, and workers in the HR selection industry) will lose their jobs to computer software tools.  

The Joint Statement summarized their recent policy guidances (no enforcement actions), that the agencies have taken in the AI area. It also details the agencies’ view of “common problems related to automated systems, including when those systems rely on data and datasets which incorporate historical bias, that many automated systems are “’black boxes’” whose internal workings are not clear to most people and that the design of automated systems may not fully contemplate their ultimate use,” the DOJ press release explained.

Presumably, AI system developer transparency and active questioning by interested buyers/licensees of AI selection and recruitment tools eliminates the “consumer lack of knowledge” concerns of the three agencies. 

For a recent update on EEOC’s actions in this space, see our report here.

Wednesday, April 26, 2023: Federal Contractors Have Until July 25, 2023, to Implement Revised Disability Self ID Form

OFCCP revised its Voluntary Self-Identification of Disability Form (CC-305) to update the preferred language for disabilities and to include additional examples of disabilities. The changes to the form do not entail collecting any new information. Federal contractors and subcontractors have until July 25, 2023, to implement the new form into their applicant and employee systems and processes, OFCCP stated in an email notice.

NOTE: This is the one form OFCCP requires federal contractors to use verbatim.

The White House Office of Management and Budget approved the revised form on Tuesday, along with other, unchanged “Information Collection Requirements” under Section 503 of the Rehabilitation Act of 1973. This new approval expires on April 30, 2026. See here and here for additional background.

Looking Ahead:
Upcoming Date Reminders

December 2022: U.S. DOL WHD’s (now overdue) target date to publish a Notice of Proposed Rulemaking to Analyze Public Comments on its proposed rule regarding Nondisplacement of Qualified Workers Under Service Contracts (RIN: 1235-AA42)

December 2022: U.S. OSHA’s (now overdue) target date to publish its Final Rule on Occupational Exposure to COVID-19 in Healthcare Settings (RIN: 1218-AD36) (OSHA submitted this Final Rule to OMB on December 7, 2022)

December 2022: U.S. DOL’s OASAM’s (now overdue) target date to publish Proposed Rule on “Revision of the Regulations Implementing Section 188 of the Workforce Innovation and Opportunity Act (WIOA) to Clarify Nondiscrimination and Equal Opportunity Requirements and Obligations Related to Sex” (RIN: 1291-AA44)

February 2023: U.S. DOL WHD’s (now overdue) target date for its Final Rule on Updating the Davis-Bacon and Related Acts Regulations (RIN: 1235-AA40)

March 2023: OFCCP’s (now overdue) target date for its Notice of Proposed Rulemaking to Require Reporting of Subcontractors (RIN: 1250-AA15)

March 2023: OFCCP’s (now overdue) target date for its Final Rule on Pre-Enforcement Notice & Conciliation Procedures (RIN: 1250-AA14)

March 2023: OFCCP’s (now overdue) target date for its Final Rule on “Technical Amendments” to Update Jurisdictional Thresholds & Remove Gender Assumptive Pronouns (RIN: 1250-AA16)

April 2023: OFCCP’s (now overdue) target date for its Notice of Proposed Rulemaking to “Modernize” Supply & Service Contractor Regulations (RIN: 1250-AA13)

Monday, April 24, 2023: Comments due on USDOL Wage & Hour Division’s Proposal to Revise Existing WD-10 Form for Federal Construction Contractors – https://www.regulations.gov/commenton/DOL_FRDOC_0001-2065

May 2023: U.S. DOL WHD’s target date for its Notice of Proposed Rulemaking on Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees (RIN: 1235-AA39)

May 2023: U.S. DOL WHD’s target date for its Final Rule on Employee or Independent Contractor Classification Under the Fair Labor Standards Act (RIN: 1235-AA43)

Tuesday, May 9, 2023: Public comment deadline on FTC’s “Request for Information” on franchise agreements and franchisor business practices – https://www.regulations.gov/commenton/FTC-2023-0026-0001

Wednesday, May 17, 2023: Deadline to submit comments on OFCCP’s Modifications to Its Proposed Changes to Its Supply & Service Contractor Scheduling Letter & Itemized Listing – https://www.regulations.gov/commenton/DOL_FRDOC_0001-2080

Tuesday, May 30, 2023: Public comment deadline on OFCCP’s proposal to modify its complaint intake procedures – https://www.regulations.gov/commenton/DOL_FRDOC_0001-2088

Tuesday, June 6, 2023: Comments due on Proposed OMB Circular No. A-4, “Regulatory Analysis” – https://www.regulations.gov/commenton/OMB_FRDOC_0001-0337

Tuesday, June 6, 2023: Deadline for comments due on proposed revisions to OMB Circular A-94 (Guidelines and Discount Rates for Benefit-Cost Analysis of Federal Programs) – https://www.regulations.gov/commenton/OMB-2023-0011-0001

Tuesday, June 6, 2023: Comments due on OMB’s implementation of Section 2(e) of the “Modernizing Regulatory Review” E.O. – https://www.regulations.gov/commenton/OMB_FRDOC_0001-0333

Thursday, June 29, 2023: Deadline for covered federal contractors and subcontractors to certify, via OFCCP’s online Contractor Portal, that they have developed and maintained affirmative action programs for each establishment or functional unit – https://www.dol.gov/newsroom/releases/ofccp/ofccp20230320

August 2023: U.S. NLRB’s target date for its Final Rule on Standard for Determining Joint-Employer Status (under the NLRA) (RIN: 3142-AA21)

August 2023: U.S. NLRB’s target date for its Final Election Protection Rule (RIN: 3142-AA22)

Friday, August 11, 2023: Deadline for Presenter Proposal Submissions for DEAMcon 2024 – https://deamcon.org/call-for-presenters/

Wednesday, April 3 – Friday, April 5, 2023: DEAMcon24 New Orleans 

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.