As we previewed last week, OFCCP’s rule codifying procedures for resolving allegations of potential discrimination through the use of a Pre-Determination Notice (PDN) or Notice of Violation (NOV) has been officially published in the Federal Register.

The main purpose of rule is to codify practices to “provide contractors with greater certainty” about the procedures OFCCP follows during compliance evaluations. Some of these procedures were previously were imbedded in the sub-regulatory Federal Contractor Compliance Manual (FCCM) and other agency directives.  The new rule also clarifies and explains the different types of evidence the Agency uses to support a PDN or NOV, as well as codifies the option available to contractors to expedite the conclusion of a compliance evaluation before a PDN or NOV is issued.

The final rule contains several substantive changes from the rule the Agency proposed in 2019.  These changes:

  1. Clarify the evidentiary standards that OFCCP must meet for the PDN must also be met for the NOV.
  2. Establish the use of the terms qualitative and quantitative evidence to describe the type of evidence OFCCP must identify in support of a PDN or NOV.  Specifically, replacing reference to non-statistical and statistical evidence with these broader, more encompassing terms.
  3. Codify the use of the agency’s consideration of practical significance in assessing potential violations and “help the agency ensure it is directing its efforts effectively.”
  4. Identify and differentiate procedures and burdens for disparate treatment versus disparate impact cases.  This includes the requirement that OFCCP provide qualitative evidence for all disparate treatment cases and identify a policy or practice causing adverse impact with factual support for disparate impact cases.  The proposed rule required qualitative (or anecdotal) evidence in cases only when the standard deviation was less than three.  The final rule removes that threshold.
  5. Establish OFCCP must explain the basis for its findings, and provide the model, variables used and explanation why variables were excluded from its analysis upon request of the contractor.
  6. Provide the framework for contractors and OFCCP to explore early resolution procedures currently in use by OFCCP, as specifically set out in the Early Resolution Procedures program, during a review.  The Agency was clear to point out that the final rule does not codify the process or the procedures themselves.

The final rule is largely seen as a positive development for the contractor community and goes to address the criticisms around transparency and certainty that have plagued the Agency for years.  And, it may in fact prove to provide helpful guidance and support for contractors who are now faced with a change of administration looming on the horizon.

With the countdown to the anticipated “changing of the guard” underway, OFCCP is not sitting idly by.  We expect to see additional rulemaking (specifically around religious exemptions) and other activities in the weeks to come so, as always, stay tuned for more.

 

OFCCP has released a final rule formally codifying two notices used by the Agency to resolve potential findings of discrimination: the Predetermination Notice (PDN) and the Notice of Violation.  The Rule is the final version of the proposed rule published at then end of last year.

OFCCP stated in its press release that it believes

[t]he final rule will help OFCCP continue increasing the number of contractors that the agency evaluates and focus on resolving stronger cases of potential discrimination through the strategic allocation of limited agency resources.

We are in the process of digesting the rules and will be providing insights and details in the coming days.

As we noted in our August 2019 post, one of OFCCP Director Craig Leen’s priorities has been to update the Agency’s website with assistance materials for contractors – including Technical Assistance Guides (TAGs).  OFCCP announced today that it has updated the TAG for contractors and subcontractors with covered supply or service contracts.

TAGs can be very helpful, especially for new federal contractors navigating affirmative action obligations for the first time, as well as for more seasoned contractors looking for insights into how the Agency may address compliance issues.

The new TAG appears to be comprehensive, covering topics ranging from written AAP organization to “Preparing for a Compliance Evaluation” and including Appendices, such as an AAP Checklist.

OFCCP notes the following highlights of the revised guide:

  • Revisions to reflect regulatory changes to Executive Order 11246, Section 503 of the Rehabilitation Act, and the Vietnam Era Veterans’ Readjustment Assistance Act
  • Outlines the equal employment opportunity obligations for federal contractors
  • Lists the required components of affirmative action programs and related information
  • Discusses what to expect during OFCCP compliance evaluations

The Supply and Service TAG is now available alongside a Construction Contractor TAG, a TAG for Educational Institutions, and one for Small Contractors.

Our previous blog posts have delved into the Educational Institutions TAG, as well as the Construction Contractors TAG.

We will review this newest TAG and share our insights in future blog posts.

As directed in the recent controversial Executive Order (EO) 13950– Combatting Race and Gender Stereotyping, OFCCP is publishing in the Federal Register a request for information (RFI) seeking to collect information regarding training materials that may contain “divisive concepts” or promote sex and race stereotyping or scapegoating. The Agency also held a public Stakeholder Call to provide RFI guidance and address questions regarding the new EO.

As a reminder, the EO directs OFCCP to collect “information from Federal Contractors … regarding the training, workshops, or similar programming provided to employees” and should

request copies of any training, workshop, or similar programing having to do with diversity and inclusion as well as information about the duration, frequency, and expense of such activities.

The RFI encourages contractors and their employees to submit training materials in order to receive compliance assistance.  During the Agency’s stakeholder call addressing the RFI, OFCCP Director Craig Leen reiterated the purpose of the RFI is to obtain relevant training material so the Agency can provide compliance assistance, and “not for enforcement.”

The RFI makes clear that participation by federal contractors is “strictly voluntary” and there are “no adverse consequences for choosing not to participate.”  The details of the RFI provide more detail and perspective, as follows:

  • According to the RFI, if a contractor submits materials that OFCCP deems are not compliant with EO 13950 and EO 11246, OFCCP will provide compliance assistance and not to bring an enforcement action.
  • Interestingly, the RFI sets out that Contractors may take advantage of this incentive only if training materials are submitted “by one of the contractor’s or subcontractor’s executives, owners or legal representatives with actual authority to legally bind the” company.
  • If OFCCP deems the information to be non-compliant, provides technical assistance and the contractor refuses to correct the issues, OFCCP may take enforcement action if the Agency later receives the materials from a separate source – such as during an audit or from an employee.

During the Stakeholder Call, Director Leen said the Agency is “hoping for a very significant response” to the RFI and that submission of training materials “can only help the company because it will not lead to enforcement.”

The risk of not providing materials hinges not only on whether OFCCP receives substantially the same materials from another source at a later time, but also on whether OFCCP could proceed directly to enforcement. It seems unlikely that would be the case.  Rather, it would appear that a contractor who did not submit materials would still have the opportunity to conciliate a subsequent alleged violation and revise its training materials to address the Agency’s concerns.

Shortly after President Trump issued the EO, OFCCP set up a hotline and website to receive complaints regarding training materials, and has already started to receive, and investigation claims as potential violations of EO 11246.  Director Leen emphasized in the stakeholder call that such efforts are consistent with the November 21 effective date of the EO because EO 11246 is consistent with EO 13950 in that both prohibit discrimination based on race or sex in the guise of affirmative action.  While diversity actions consistent with EO 11246 are encouraged and required, discrimination is not permitted.

We want to continue to emphasize that the EO does not ban training – only specific divisive concepts.  We suggest federal contractors carefully review and revise their training materials, as necessary, as well as “train the trainer” regarding the parameters of the EO.

We will continue to provide updates as discussions continue and additional information and insights are learned.

As promised, OFCCP has released a handful of Frequently Asked Questions (FAQs) addressing the President’s Executive Order Combating Race and Gender Stereotyping (Executive Order 13950).

While limited in nature, the FAQs confirm what OFCCP has been expressing regarding the executive order, including the fact that the Order does not outright prohibit unconscious bias training but instead, clarifies that the training is prohibited

 . . . to the extent it teaches or implies that an individual, by virtue of his or her race, sex, and/or national origin, is racist, sexist, oppressive, or biased, whether consciously or unconsciously.

The FAQs specifies that

Training is not prohibited if it is designed to inform workers, or foster discussion, about pre-conceptions, opinions, or stereotypes that people—regardless of their race or sex—may have regarding people who are different, which could influence a worker’s conduct or speech and be perceived by others as offensive.

OFCCP again emphasizes that while the Executive Order does not become effective until after November 21, 2020 for the federal contractor notice and contract provisions,

OFCCP may investigate claims of sex and race stereotyping pursuant to its existing authority under Executive Order 11246.

As this is a currently developing story we will continue to update with new information and additional insights.

 

As instructed by last week’s Combatting Race and Sex Stereotyping Executive Order, OFCCP has set up a hotline to receive complaints of unlawful stereotyping.  The executive order directs OFCCP to

establish a hotline and investigate complaints received under both this order as well as Executive Order 11246. . .  .

Notably, the hotline is currently active (allowing callers to leave a message or submit a complaint via specific complaint e-mail), despite the fact the EO does not become effective for federal contractors unless or until a new contract is entered into after November 21, 2020.  OFCCP explains in its press release announcing the hotline that any training that violates the EO, also violates a contractor’s current obligations under EO 11246, explaining specifically that

[w]hile the order is effective immediately, its specific requirements for Federal contractors apply only to those with Federal contracts entered into 60 days after the date of the order, or Nov. 21, 2020. However, training programs prohibited by the new Executive Order may also violate a contractor’s obligations under the existing Executive Order 11246, which prohibits discrimination based on race, color, religion, sex, sexual orientation, gender identity, national origin, and for inquiring about, discussing, or disclosing your compensation or the compensation of others.

The press release (and the hotline message) also provides information regarding how to file a complaint at OFCCP’s website.

Thus, while the EO is not effective until November 21, contractors should be aware that employees may file complaints and OFCCP can investigate violations at any time starting immediately.  Given this, we suggest contractors carefully review existing training materials, and stay tuned here for further developments.

 

OFCCP’s most recent CSAL included, for the first time, establishments selected for promotion and accommodation focused reviews.  While the Agency has talked for sometime about initiating these types of focused reviews, there has been little information available to help contractors understand what the reviews will entail.   Today, the agency has provided some, albeit limited, insight with the Agency’s launch of landing pages for both Promotions Focused Reviews and Accommodations Focused Reviews. 

Regarding promotions focused reviews, OFCCP says:

Compliance Officers will review, among other things, contractor policies and procedures, employee personnel files, and personnel data tracking contractors’ promotion decisions. Compliance Officers will also conduct interviews with managers responsible for promotion decisions and, if applicable, with affected employees. OFCCP may also evaluate hiring and compensation policies, procedures, and data, as appropriate, to determine if qualified applicants are being steered into lower paying positions with limited upward mobility or otherwise prevented from advancing professionally.

Importantly, OFCCP states:

“[o]ne aspect of these reviews will be to examine whether discrimination occurs at the intersection of race and gender.

Regarding accommodations focused reviews, OFCCP states:

In conducting these reviews, Compliance Officers will examine a contractor’s policies and procedures related solely to religious and disability accommodations, as identified in the scheduling letter. The Compliance Officer will specifically review documentation relating to accommodation requests and dispositions, with a particular emphasis on denial(s) of accommodation.

However, at least for now, the web pages are short on details.  There is no example of the scheduling letters OFCCP will use or, thus, any itemized listing of what data and documents the Agency may require at the outset of a review.  However, there is a description of what the scheduling letter will entail:

The scheduling letter specifies the documents and data that a contractor must provide to OFCCP when selected for a promotions [or accommodations] focused review. The letter and itemized listing are tailored to obtain basic affirmative action programs, support data, and information applicable specifically to [accommodations and] promotion opportunities, policies and practices.

Likewise, OFCCP says a Sample On-Site Review Guide and a Sample Focused Review Report are “Coming Soon”.

For now, OFCCP has launched an FAQ page for promotion and an FAQ page for accommodation reviews.

Stay tuned for more information and insights on these focused reviews.

On September 22, 2020 President Trump issued an Executive Order “on Combating Race and Sex Stereotyping” (“September 22 EO”) covering government contractors and certain grant recipients that outlines what those organizations cannot include in employee training. It appears, the September 22 EO covers all federal contractors and subcontractors and will require contracting agencies to insert a contract clause in contracts (presumably, from the language of the EO new contracts only) entered into 60 days from September 22, 2020 addressing race and sex stereotyping.

Stemming from the belief that

[i]nstructors and materials teaching that men and members of certain races, as well as our most venerable institutions, are inherently sexist and racist are appearing in workplace diversity trainings across the country

the Order establishes a requirement that contractors and grant recipients not use any workplace training that

“inculcates in its employees” any form of race or sex stereotyping or any form of race or sex “scapegoating”

This includes prohibition on the following concepts:

  • one race or sex is inherently superior to another race or sex;
  • an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously;
  • an individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex;
  • members of one race or sex cannot and should not attempt to treat others without respect to race or sex;
  • an individual’s moral character is necessarily determined by his or her race or sex;
  • an individual, by virtue of his or her race or sex, bears responsibility for actions committed in the past by other members of the same race or sex;
  • any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex; or
  • meritocracy or traits such as a hard work ethic are racist or sexist, or were created by a particular race to oppress another race.

Given this, the Executive Order could severely limit and curtail diversity and inclusion, sexual harassment, and related EEO training contractors and government grant recipients are allowed to provide to their employees.

Interestingly, the September 22 EO does not include a provision that regulations be issued to implement its requirements.   However, importantly, the Office of Federal Contract Compliance Programs has been tapped as the Agency to enforce the Executive Order.  Per the Order, the Director of OFCCP is required to publish a request for information within 30 days of September 22 seeking from federal contractors and subcontractors information regarding training, workshops or “similar programming” provided to employees, and interesting, that those materials, as well as information about the expense, frequency, duration of the trainings be provided to OFCCP.  There is no detail or instruction as to what OFCCP is required to do with the submissions. However, the executive order states violators can be subject to contract suspension or termination and the contractor may be subject to suspension or debarment.

In addition, the September 22 EO requires all federal agency heads to review their grant programs, and identify in a report to be provided to the Director of the Office of Management and Budget (“OMB”) within 60 days of issuance of September 22, programs that the agency determines as a condition of receiving grant monies that the recipient certify that it will not use federal funds to “promote the concepts” identified above with respect to federal government contractor prohibitions in training and related materials.

If fully implemented, the requirements of the Executive Order could require significant modifications to the content of trainings on race and sex including, diversity and inclusion and unconscious bias, that have become the mainstay for many employers, including contractors and grant recipients.  Some of these trainings are, or may be, required by other federal or state requirements, which could pose a conflict for contractors.

We anticipate challenges to this Executive Order.  We will be following this closely and will be back with future insights and developments.

We have learned that OFCCP has posted a revised version of the most recent CSAL on its website.

Approximately 84 entries have been modified so that some promotion focused reviews have been changed to establishment reviews and in at least one instance, an additional establishment review was added.

Also, it is worth noting that OFCCP has not yet announced what it will be using as a scheduling letter for the new promotion and accommodation focused reviews.  They have not requested, nor received, OMB approval for use of any specific scheduling letter for these types of reviews.

As always, stay tuned for further updates.

As reported in today’s Federal Register, OFCCP is seeking regulatory authority to:

  • Require federal contractors to annually certify they have prepared AAPs via an online interface; and,
  • Institute “a secure method” to electronically submit AAPs when contractors are scheduled for an audit.

As we reported nearly a year ago, because OFCCP cannot conduct a compliance review of every federal contractor location every year, OFCCP wants an efficient alternative method to ensure all federal contractors are regularly preparing annual AAPs.  OFCCP’s desire for an annual certification process stems directly from a pre-COVID-19 Government Accountability Office (GAO) criticism that 85% of contractors do not timely submit AAPs within the 30-day deadline.  According to the GAO, that statistic “suggests that OFCCP processes do not ensure that all contractors are complying with their obligation to complete and annually update an AAP.”  Due to the COVID-19 pandemic, that percentage may now be even higher.

The Federal Register notice is short on details.  Instead, OFCCP is soliciting your input regarding, among other topics:

  • The frequency of the certification (the proposal is for annual certification);
  • The type of information and level of detail to be required in the certification;
  • Whether certification would be practically useful to OFCCP in service of its mission, as compared to the burden on contractors; and,
  • Whether the estimated burden on contractors (36 minutes to certify) is accurate.

The notice does appear to propose that contractors upload AAPs annually as part of the certification process, a possibility floated in the GAO’s 2016 report.

Contractors can submit their input to OFCCP on or before November 13, 2020 via the federal e-Rulemaking portal at https://www.regulations.gov/ .

As we receive more detail and assess the possibilities for the certification process, we will make sure to bring you our insights and updates.