OFCCP Week In Review: June 17, 2024

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

• US DOL Inspector General’s Office Scheduled Audit to Review OFCCP’s Construction Contractor Compliance Enforcement Efforts
• New OFCCP VEVRAA Guidance Clarifies That its Protected Veteran “Benchmark for hiring” is a Recruitment Goal & Not a Hard Number Quota
• Contractors Have 2nd Opportunity to Comment on Proposed Changes to OFCCP Construction Compliance Review Scheduling Letter, Itemized Listing, & Construction Contract Award Notification Requirement Form
• In Brief
• Looking Ahead: Upcoming Date Reminders

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

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

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

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

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

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

OFCCP announced a new example illustrating the use of the “individualized” alternative VEVRAA national benchmark calculation methodology and an updated VEVRAA Affirmative Action Program sample with additional information on using the individualized “Benchmark for hiring” effectively to monitor veteran recruitment efforts

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.