As an update to our recent post discussing the latest chapter of the OFCCP/TRICARE saga, OFCCP has asked the United States Department of Labor’s Administrative Review Board to reconsider their “deeply divided” decision in which a plurality of the ARB decided the National Defense Administration Act (NDAA) precluded OFCCP’s jurisdiction over Florida Hospital.  

 In requesting the ARB take another look at the issue, OFCCP explicitly stated the lack of a majority ruling on OFCCP jurisdiction under “Prong One” of the Agency’s definition of a subcontract

means the only way OFCCP can obtain a ruling on this issue is to continue to notice TRICARE network providers for compliance reviews where Prong One is applicable.

 The Agency states further that, without resolution of this issue by the ARB, 

 “OFCCP will be forced to bring another enforcement action [a.k.a. Litigation] against one or more TRICARE network providers” in order to obtain resolution of this critical question.

 In its Motion for Reconsideration, OFCCP argued the ARB’s recent “splintered decision” left unanswered the “critical issue” of whether the NDAA prevented OFCCP from asserting jurisdiction over Florida Hospital (and similarly situated healthcare industry employers) on the basis of Florida Hospital’s performance of services “necessary to the performance” of the TRICARE contract – also referred to as “Prong One” under OFCCP’s definition of a subcontract. 

 As we mentioned before, despite last month’s ruling, the question of OFCCP’s jurisdiction over employers involved in TRICARE remains unsettled, and it looks as though OFCCP will take the opportunity to continue to flex its compliance muscle . . .