As all good things must do, the this year’s NILG National Conference has come to a close. As is tradition at this point, the last morning of the conference featured a panel of OFCCP’s Regional Directors, including Diana Sen (Northeast), Carmen Navarro (Midwest), Jane Suhr (Pacific & SWARM), Aida Collins (Southeast), and Sam Maiden (Mid-Atlantic). The panel, moderated by NILG Board Member Valerie Vickers, discussed hot issues, and answered specific questions about compensation, artificial intelligence, transparency, and self-identification, among others – all topics that fostered robust discussion throughout the conference.

The Regional Directors echoed a number of messages shared by interim OFCCP Director Michelle Hodge to open the conference, including the desire to work with contractors to resolve matters early on in the audit process as well as the training being administered for new compliance officers. They also reiterated the agency’s focus on obtaining timely and complete submissions from contractors during the audit process speaking specifically about the Agency’s approach to looking at all components of pay – not just base and bonus, and the Agency’s work to ensure contractors who utilize artificial intelligence are in compliance with their nondiscrimination obligations.

Director Sen shared details as to the Agency’s process for analyzing compensation, including the regions routine collaboration with the national office, including standing meetings with the Bureau of Enforcement Statistics.

Channeling the “Transforming for Tomorrow” theme of the conference, the regional directors each shared a “promising practice or issue.” Director Collins is finding early resolutions are making a difference while Director Sen shared promising practices observed by compliance officers in Corporate Management Compliance Evaluations (CMCE). Director Navarro encouraged contractors to fully implement their AAPs prior to audits and both Directors Suhr and Maiden highlighted the technical assistance offerings of the Agency for contractors to use to get into compliance, something further highlighted by each Director as the panel concluded.

In closing, Val thanked each of the Directors for their participation and acknowledged

“these conferences would not be as rich without OFCCP.”

This week was undoubtedly thought-provoking and full of knowledge, insights and information sharing. We look forward to doing it again next year and hope to see you all in 2024 in Orlando!

The second day of the NILG 2023 National Conference did not disappoint.  The day kicked off with regional ILG’s breakfasting with their respective OFCCP Regional Directors followed by a keynote address from EEOC Chair Charlotte Burrows.

Chair Burrows opened her remarks by thanking NILG for being a “steadfast partner” in the important work EEOC does to ensure equal employment opportunity and that all Americans are “treated with basic human dignity in the workplace.”  She noted there is a “great deal of work left to be done” as the Agency tries to fulfill the promise of equality but declared EEOC is doing everything it can.

Specifically, Chair Burrows discussed EEOC’s focus on “tackling systemic discrimination in all of its forms” which includes the Agency’s 5 year strategic enforcement plan, developing guidance on how to handle harassment after the Me Too movement, Bostock, and the pandemic. She also described the Agency’s focus on the construction industry which she recognized is “new” for the Agency.

With respect to a topic on everyone’s mind, pay data reporting, Chair Burrows reported the Agency is carefully considering the National Academy of Sciences’ report to ensure they “get this right.” She declined to say much more as not to “get ahead of the Commission’s process” but previewed we will be hearing more from the Agency as it seeks stakeholder input as part of its process. She did state she believes pay data reporting is “something they are moving towards.”

Chair Burrows went on to speak about the various inter-agency partnerships EEOC has and described in detail the work it is doing in connection with several initiatives including the Pregnant Workers Fairness Act.

In closing, Chair Burrows recounted the way the publication of Martin Luther King’s Letters from a Birmingham Jail came about and reflected that implementation of those “things that matter, the things that make a difference”, maybe tedious but “when you put it all together at the end its magical.”

As was the case with Day 1, Day 2 of the conference was packed full of informative and thought-provoking sessions, including an Agency update, several discussions about artificial intelligence, the impact of the United States Supreme Court Students for Fair Housing decision and implications for DEI programs amongst others.

As we head into the evening’s festivities and prepare for the final day of the conference its hard to not reflect on Chair Burrows’ final remark of the morning that the work we undertake “will make amazing differences in the workplace.”

As previewed yesterday in OFCCP Interim Director Michelle Hodge’s keynote remarks during the opening day of the NILG 2023 National Conference, OFCCP has released the final rule on “procedures for identifying and remedying discrimination in federal contracting.” Commonly referred to as the PDN rule, the Pre-Enforcement Notice and Conciliation Procedures rule will be officially published in the federal register on August 4, 2023 and will go into effect on September 5, 2023.

Director Hodge announced the release of the final rule in a blog titled “Department of Labor Establishes Final Rule that Promotes Equal Employment Opportunity” in which she reports the new rule

restores flexibility to OFCCP’s pre-enforcement and conciliation procedures, promotes efficiency in resolving cases, strengthens enforcement and promotes alignment of the standards of Title VII of the Civil Rights Act of 1964.  

The new rule modifies the Agency’s earlier “Nondiscrimination Obligations of Federal Contractors and Subcontractors: Procedures to Resolve Potential Employment Discrimination” rule which took effect on December 10, 2020.

In an e-mail from OFCCP announcing the rule, the Agency stated

[t]he 2020 rule imposed inflexible evidentiary requirements early in the agency’s compliance evaluation process and attempted to codify complex definitions for “qualitative” and “quantitative” evidence and other standards. These evidentiary standards and definitions hindered OFCCP’s ability to pursue cases with merit and diverted agency and contractor resources away from addressing discrimination.

We are in the process of reviewing the final rule and will be back soon with further thoughts and insights.

Day One of the NILG 2023 National Conference is in full swing. Not deterred by the outdoor temperatures, conference attendees, presenters, vendors and Agency representatives enjoyed a first day’s agenda overflowing with informative sessions where “ideas are nurtured and knowledge is exchanged” as part of this year’s conference theme of “Transforming for Tomorrow.”

The Opening Ceremony started with a traditional dance from representatives of the Yellow Bird Apache Indians.

Acting OFCCP Director Michelle Hodge was the morning’s keynote speaker. Director Hodge opened her remarks by addressing the recent United States Supreme Court Decision addressing affirmative action in higher education admission programs, stating there is a

“bright line between that ruling and the work we do”.

She stated the work is “wholly distinct” and there continue to be lawful and appropriate ways to foster inclusive workplaces”. She shared her belief that “diversity is one of our country’s greatest strengths.”

 Director Hodge then went on to describe what contractors can expect from OFCCP. “Strengthening enforcement efficacy and efficiency” topped the list followed by modernization and tightening unnecessary extensions as well as strengthening data analytics, and agency hiring and training.

As far as Agency priorities, Director Hodge listed three specifically:

  1. Strengthen enforcement to protect underserved marginalized workers
  2. Dismantle hiring barriers
  3. Expand outreach and education outreach efforts  

Spending a good deal of her remarks on the first item, Director Hodge shared statistics about OFCCP contractor portal compliance, discussed the agency’s focus and perspective on contractors’ compliance obligations with respect to use of artificial intelligence in the hiring process and the state of OFCCP’s rulemaking efforts. Director Hodge shared that the final PDN rule should be released in the coming days. She noted the rule will “restore” the Agency’s flexibility in audits but also “continue to promote transparency and consistency by requiring continued use of the PDN.”

In closing, highlighting the conference theme by noting “the time is now to transform for tomorrow,” Director Hodge invited conference attendees to “reflect on your workplace programs“ and to ask the question “does the intent of your policies in practice remove barriers or create them?” 

The remainder of the day was filled with thought-provoking sessions on a wide variety of topics, including OFCCP’s approach to pay in audits, artificial intelligence, disability accommodations, ESG, OFCCP enforcement statistics and audit trends, military recruitment best practices and a whole host of other informative discussions.

We are looking forward to Day Two which will kick off with an address from EEOC Chair Charlotte Burrows.

Have a great evening and we’ll see you tomorrow!

As a reminder, the deadline to implement the latest, updated version of the Section 503 voluntary disability self-ID form is July 25, 2023.

The OMB approved revised form, including versions in various languages, is available on OFCCP’s website.

OFCCP also provides a number of Frequently Asked Questions regarding implementation of the form that contractors may find useful, including information on what may and may not be altered with implementation of the form.

A new Federal Acquisition Regulation (FAR 52.204-27) enacted in June 2023 requires companies with covered contracts to ban the use of TikTok and other apps developed by ByteDance Limited on employee devices, including personal cell phones, which are used in the performance of government contracts.  The ban does not apply to devices “incidental to a Federal contract” however, the term “incidental” is not defined.

The ban applies to federal contracts that include the FAR clause (FAR 52.204-27), which Federal agencies were directed to include in all new solicitations beginning June 2, 2023. Existing contracts and indefinite-delivery contracts may also be amended to include the new clause.  The ban is far-reaching and applies to contracts below the micro-purchase threshold, contracts for commercial products and services, and Commercially Available Off the Shelf (COTS) items.

While the interim rule is already in effect, public comments are still being solicited. The ban was designed to ensure data security but could create headaches for federal contractors as it may implicate wage and hour, free speech and other legal issues.   

Prime contractors must flow down the clause in subcontracts, but there is no current mechanism requiring prime contractors monitor compliance by subcontractors.  There is no self-certification or non-compliance reporting obligation.

To ensure compliance with the new rule, contractors should take the following steps:

  • Review contracts, bids solicitations and any requests for amendment: Examine existing contracts entered in after June 2, 2023 and upcoming solicitations to determine applicability of the ban.
  • Update policies and procedures: Revise company policies and procedures to reflect the ban on TikTok usage and its impact on device policies.  Consider obtaining employee acknowledgment of the policy.
  • Block TikTok on company-issued devices: Take necessary technical measures to prevent the usage of TikTok on devices owned by the company, including those issued to employees.
  • Discuss implications with counsel: The TikTok ban may have an impact on existing policies and practices, and it may create other legal risks and compliance issues, especially in connection with personal employee devices used for work.

The deadline for federal contractors and subcontractors to certify compliance with the affirmative action regulations in the OFCCP Contractor Portal was June 29, 2023.  Leading up to the deadline, many contractors experienced technical issues in registering and certifying on the portal. 

OFCCP released a statement on June 30th stating that

OFCCP will consider a contractor’s registration and/or certification timely if the contractor has a pending request for assistance as of June 29, 2023.

The communication further stated that while the Help Desk is currently working through the open help desk tickets,

the deadline to certify compliance has not been extended. 

OFCCP directs any contractor or subcontractor that has not registered, certified, or submitted a help desk ticket should do so “as soon as possible.”  The Help Desk is still open to assist contractors and subcontractors with the registration and certification process.

We continue to monitor developments with the Contractor Portal and will provide updates as new information becomes available. If you have questions, please contact the Jackson Lewis attorney with whom you regularly work or a member of the Affirmative Action, OFCCP and Government Contract Compliance Group to discuss.

In an update on its EEO-1 Component 1 Data Collection landing page, EEOC pushed

“the tentative opening of the 2022 EEO-1 Component 1 data collection to the Fall of 2023.”

As previously reported, EEOC originally anticipated the portal to open mid-July 2023.  Due to the Agency completing a “mandatory, three-year renewal of the EEO-1 Component 1 data collection by the Office of Management and Budget (OMB),” the opening has been further delayed.  Last year the reporting period began in April with a deadline of May 17, 2022.

A final opening date as well as the opening of the filing support Message Center will be posted to the EEO-1 Component Data Collection landing page once available.  We will keep monitoring developments in this area and will update as more information becomes available.

On June 5, OFCCP released a new Corporate Scheduling Announcement List (CSAL) for construction contractors. The CSAL is the list of construction contractors selected for upcoming audits by the Agency. OFCCP last released a CSAL for construction contractors in 2021.

This CSAL comes on the heels of OFCCP’s Mega Construction Project Program launch and furthers former OFCCP Director Jenny Yang’s campaign to increase OFCCP’s oversight of construction contractor affirmative action compliance efforts.

OFCCP stated that the list includes “250 federal contractors, federally assisted contractors, and federally assisted subcontractors.” The Agency’s scheduling methodology explains that the CSAL was developed by first “downloading federal construction contracts valued over $10,000 from the USA spending database.” The U.S. Department of Transportation provided similar information to OFCCP related to federally assisted construction contracts. The list was then narrowed to those contractors with the highest aggregated contract values, with start dates prior to May 15, 2022, and end dates after May 15, 2025. Finally, OFCCP removed contractors currently under review in a monitoring period pursuant to a conciliation agreement or within the exemption period after a compliance evaluation.

OFCCP indicated that it would not schedule any compliance evaluations from this CSAL until the 2021 construction contractor CSAL has been exhausted.

As a reminder, the construction contractor affirmative action requirements differ significantly from those applicable to supply and service contractors. However, some construction contractors may be subject to both sets of requirements. This advance notice represents an excellent opportunity for contractors on the CSAL to ensure compliance with all applicable regulations and prepare for their impending audit.

We will continue to monitor developments in this area and provide updates as appropriate.