Last spring and summer saw a flurry of Executive Orders and OFCCP actions. With everything that’s going on its hard to keep tabs on the status of all the new regulations and regulatory actions.  In an effort to help keep tabs on it all, here’s an up-to-date recap of the Agency’s agenda:

  •   Minimum Wage for Federal Contractors: The $10.10/hour wage applies to covered contracts arising out of solicitations issued after January 1, 2015.

 

  • LGBT Discrimination: The final rules will be effective for federal contracts/subcontracts entered into after April 8, 2015.  Although you may want to update other documents for consistency, the final regulations only require two primary actions:
    • Inclusion of “sexual orientation” and “gender identity” in your EEO Tagline if the protected statuses are listed. We may still use abbreviated EEO Taglines; and
    • Posting of an updated “EEO is the Law” poster when available.

 

  • Sex Discrimination Proposed Rules: In January, OFCCP proposed binding regulations to replace the decades-old Sex Discrimination Guidelines. The comment period closes March 31, 2015 so you still have time to submit your comments.

 

  • Equal Pay Report: OFCCP’s Regulatory Agenda projects August 2015 for publication of the final rules.  More about the Report can be found here.

 

  • Pay Transparency: According to OFCCP’s Regulatory Agenda, final regulations are targeted for September 2015.  In addition to prohibiting discrimination/retaliation against applicants and employees who discuss pay, the proposed rules require:
    • Inclusion in employee handbooks of an anti-discrimination policy; and
    • Physical or electronic posting of the policy for applicants and employees.

 

  • Construction Contractor Affirmative Action Requirements: OFCCP has for years been preparing updated regulations governing affirmative action for federal construction contractors. OFCCP’s latest projection is to release the proposed rules in September 2015.

 

  • Fair Pay and Safe Workplaces: As we recently reported, a Congressional hearing addressed the complexity of and potential burdens on federal contractors imposed by this Order. No date has been published for proposed regulations but a White House Fact Sheet states this Executive Order will be “implemented on new contracts in stages, on a prioritized basis, during 2016.”

 

We will continue to provide updates with developments on the above so stay tuned.

In connection with the April 8, 2015 effective date of OFCCP’s implementation of Executive Order 13672, OFCCP announced today training sessions on compliance with the new sexual orientation and gender identity regulations.

The Agency will be presenting a webinar on Wednesday March 18, 2015 on the Agency’s implementation of the new sexual orientation and gender identity non-discrimination requirements.  The webinar will be presented again on Wednesday, March 25, 2015.  The Agency will provide a Q&A session during both webinars.

 

 

In October 2014, OFCCP issued a new scheduling letter that significantly impacts what employers must submit during an audit.  As we suspected, OFCCP’s enforcement under the new letter is a “game changer” for federal contractors.

Join us on March 24, 2015 from 2:00 PM – 3:30 PM Eastern as we share our experiences in audits initiated under the new scheduling letter, including OFCCP requests, how to respond, and how to prepare for an upcoming compliance review.

Topics to be discussed include:

  • What forms of compensation should be submitted?
  • What types of issues arise when specific minority group data is submitted?
  • How should employers demonstrate compliance with the new veteran and disability regulations? . . . and many more.

We hope you can join us for this informative and practical presentation.

Today, the congressional Subcommittees on Workforce Protections and Health, Employment, Labor, and Pensions heard testimony in connection with Executive Order 13673 – Fair Pay and Safe Workplaces, signed in July 2014 by President Obama.

This Executive Order requires contracting agencies to take into account violations of 14 Federal statues (and equivalent state laws) when considering contract awards. Under the Executive Order, contractors and subcontractors will be required to report three years of violations of these laws during the bidding process and then provide updates every six months.

In addition, the Executive Order prohibits contractors with contracts in excess of $1million from utilizing pre-dispute mandatory arbitration agreements with employees for disputes arising out of Title VII and from torts related to sexual assault or harassment.

As anticipated there are concerns about the implications of these requirements for the contractor community.

The hearing provided committee members an opportunity to examine the effect of the president’s executive order as well as concerns raised by employers and stakeholders including the Orders implications on a contractor’s due process rights and inter-play with the Federal Arbitration Act.

We will continue to track developments in connection with this Executive Order and provide updates as we learn of them.

In response to requests following publication of the final regulations implementing President Obama’s recent Executive Order addressing non-discrimination and affirmative action on the basis of sexual orientation and gender identity, OFCCP has published a directory of resources to assist federal contractors

 “around issues relating to creating an inclusive workplace of lesbian, gay, bisexual, and transgender employees.”

The directory includes information from both public and private sectors and OFCCP indicates it will be updated periodically.

These resources can be useful as you train and educate managers and hiring personnel on the implications of these new protections.  The final regulations are set to go into effect on April 8, 2015.

On February 3, 2015 the Department of Labor published a second request for public comments on how it can increase regulatory effectiveness and minimize burdens.  DOL’s request is made pursuant to President Obama’s 2011 Executive Order 13563, requiring federal agencies to review their regulations for ways to make them more effective and less burdensome.  A copy of DOL’s preliminary plan, including OFCCP rules, is here.

OFCCP has already updated VEVRAA and Section 503 regulations, and proposed new rules regarding sex discrimination, pay transparency and pay data collection.  Nonetheless, this request provides another opportunity for federal contractors to directly voice insights and suggestions to OFCCP.

While not asking about specific regulations, OFCCP seeks responses to six particular questions, such as:  “What reporting requirements and information collections can be streamlined or reduced in frequency while achieving the same level of protections…?”

DOL has set up an Internet Portal specifically designed to capture your suggestions.  The Portal is open for input and suggestions from January 28, 2015 through February 25, 2015 and all comments will be available to the public through the Portal.  Let your voice be heard.

As anticipated, OFCCP published on Friday, January 30, 2015 the Agency’s proposed Sex Discrimination Rules in the Federal Register.  The public comment period is open until March 31, 2015.

We are in the process of digesting the new rules so check back soon for an in-depth analysis, including a section-by-section review of the new obligations.

OFCCP announced today proposed regulations which would replace its Sex Discrimination Guidelines.  What’s new?  First, the rules would create new obligations whereas the Guidelines were “interpretations and guidelines” regarding Executive Order 11246’s prohibition of sex discrimination.  Second, given the Guidelines were issued 40 years ago, a lot has changed.  Among other topics, OFCCP says the rules would address pay discrimination, sexual harassment, workplace accommodations for pregnancy, gender identity and family caregiving discrimination.

A copy of the proposed regulations, a fact sheet and FAQs are here.

The proposed rules are scheduled to be published in the Federal Register on January 30, 2015.  Comments on the proposed regulations will be due 60 days from their publication in the Federal Register, which would be March 31, 2015, if the regulations are published on January 30.

We encourage you to weigh-in on the proposed rules.  Many federal contractor advocacy organizations will be submitting comments.  Let your voice be heard by submitting your comments to one of those organizations, or by submitting a comment directly to OFCCP.  Your comments, identifying RIN number 1250-AA05, can be submitted to OFCCP as follows:

  •  www.regulations.gov;
  • Fax: (202) 693-1304 (for comments of six pages or less); or
  • Mail: Debra A. Carr, Director, Division of Policy, Planning, and Program Development, Office of Federal Contract Compliance Programs, Room C-3325, 200 Constitution Avenue, N.W., Washington, D.C. 20210.

At 108 pages, there is a lot to digest in the proposed rules.  Check back soon for analysis of what the regulations require and how they may affect you.

As a follow up to OFCCP’s recent release of FAQs addressing the protected veteran data collection obligations for contractors, we wanted to take a moment to reiterate employers’ continued obligation to solicit veteran status from applicants post-offer.

Under the revised VEVRAA regulations, employers must solicit protected veteran status from candidates both at the pre-offer and post-offer stage.

The changes explained by OFCCP’s new FAQs relate to the detail of information employers are required to collect as part of this self-id process.

At the post-offer stage, employers are required to solicit information about an applicant’s status as a protected veteran but are no longer required to ask the individual to identify the specific category of protected veteran to which they belong.

To reiterate – employers are still required to solicit protected veteran status post-offer, they just no longer have to obtain detail as to the applicable category of protected veteran.

As we addressed in late-September 2014, the new VETS-4212 Form to be filed by employers in 2015 will not require reporting of specific categories of “protected veteran.”  The VETS-4212 will require reporting of only the total number of protected veterans.

Under the revised Section 4212 regulations, employers have the obligation to invite applicants to self-identify as a protected veteran at both the pre-offer and post-offer stages.  At the pre-offer stage, employers have never been required to invite applicants to identify the specific protected veteran category to which they belong.  Previously, the Section 4212 regulations required employers to invite post-offer applicants to identify to which specific category of protected veteran category they belong.

After the regulations were updated, and in connection with release of the new VETS-4212 form, there was a question of whether employers were still required to invite applicants or employees to identify whether they fall into one or more of the specific protected veteran categories.

Today, OFCCP answered the question in the posting of two new VEVRAA FAQs and the answer is “No.”

OFCCP’s FAQs explain:

 [S]ince the new VETS-4212 report no longer requires contractors to provide this information by the individual protected veteran categories, contractors are not required to invite self-identification by category in order to comply with VEVRAA’s post-offer invitation requirement. Rather, contractors need only invite those offered a job to indicate whether they are protected veterans under any of the VEVRAA categories.

Though not required, contractors may choose to continue to invite applicants to voluntarily self-identify the specific category or categories of protected veteran to which they belong at the post-offer stage …

This raises yet another question – Is there any benefit to collecting information on the specific protected veteran categories now that it’s not required?  In answering this question you should weigh the risks in collecting the information against any benefit from gathering the information given there is no longer any obligation to collect it.