by | May 8, 2012

Unemployment of Veterans Decreases as OFCCP Increases Obligations for Veteran Employment

Employment of veterans has significantly improved over the past year, according to new data from the Bureau of Labor Statistics (BLS).  The BLS’s report shows that from February 2011 to February 2012, the unemployment rate for veterans 18 and older decreased from 9.2% to 7.0% – lower than the unemployment rate for nonveterans. 

These strong statistics coincide with new government efforts to boost job prospects for returning members of the armed forces.  On April 26, 2011, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) published proposed regulations that would impose additional affirmative action obligations on federal government contractors under the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA).  Once finalized, the regulations would require contractors, among other things, to (1) take certain mandatory actions in recruitment, recordkeeping and dissemination of affirmative action policies relating to protecting veterans; (2) establish annual hiring benchmarks to track the effectiveness of their affirmative action programs; (3) request disclosure information from applicants; and (4) collect data concerning job referrals.

In addition, the Department of Labor (DOL) proposed new regulations this past February implementing amendments to the military leave provisions of the FMLA.  These proposed regulations, once finalized, would (1) extend the availability of FMLA leave to family members of members of the Regular Armed Forces for qualifying exigencies arising out of the servicemember’s deployment; (2) extend FMLA military caregiver leave to family members of certain veterans with serious injuries or illnesses; and (3) allow eligible employees to take 15 days off when a service member comes home for rest and recuperation rather than the five days currently allowed.

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Filed under Affirmative Action Plan (AAP), Department of Labor, OFCCP, Veterans

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by | May 8, 2012

DoD, GSA, and NASA Issue Proposed Rule Implementing Executive Order Requiring Certain Contractors to Hire Predecessor Employees

On May 3, 2012, the Department of Defense (“DoD”), the General Services Administration (“GSA”), and the National Aeronautics and Space Administration (“NASA”) issued a proposed rule implementing Executive Order 13495, Nondisplacement of Qualified Workers Under Service Contracts (“EO 13495”) and the Department of Labor’s (“DOL’s”) final regulations implementing EO 13495.  EO 13495 was initially signed by President Obama on January 30, 2009.  It requires federal contractors and subcontractors that are successors to certain government contracts to offer employment on a “first right of refusal” to employees (not including managerial and supervisory employees) employed under the predecessor contract, whose employment would otherwise be terminated at the end of the predecessor contract.

 As we previously reported, on August 29, 2011, the DOL issued final regulations that implemented EO 13495 and clarified many of the terms in that Executive Order.  The proposed rule issued by DoD, GSA, and NASA would amend the Federal Acquisition Regulations (“FAR”) to add subpart 22.12 and a new clause at FAR 52.222-XX to require service contractors and their subcontractors under successor contracts to offer employees of the predecessor contractor a right of first refusal of employment for all positions for which they are qualified.  The proposed rule contemplates amending the FAR clause so that it is virtually identical to DOL’s final regulations, except it will not include provisions concerning the investigative methods, available reviews, or enforcement mechanisms established by the DOL.

 Comments on the proposed rule are due by July 2, 2012.

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Filed under Department of Defense, Department of Labor, Service Contract Act (SCA)

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by | February 1, 2012

OFCCP Rejects Requests to Extend the Comment Period for its Proposed Rule That Would Drastically Expand Contractor’s Obligations for Individuals with Disabilities

On January 27, 2012, the Office of Federal Contract Compliance Programs (“OFCCP”) rejected requests from the contractor community to provide additional time for comments on its proposed regulations under Section 503 of the Rehabilitation Act of 1973 (“Rehabilitation Act”) that would impose fundamental changes in federal contractors’ obligations involving persons with disabilities.  On December 9, 2011, the OFCCP issued a proposed rule that would amend the Rehabilitation Act.  A summary of the proposed rule is provided below.

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Filed under Affirmative Action Plan (AAP), Department of Labor, Disability Discrimination and Accommodation, Discrimination, EEO, OFCCP

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by | December 8, 2011

USDA Proposes Rule That Would Require Contractors to Certify Compliance with Labor Laws

On December 1, 2011, the United States Department of Agriculture (“USDA”) issued a direct final rule that would require contractors holding contracts with the agency to certify that they (and their subcontractors, to the best of their knowledge) are in compliance with all applicable labor laws.  Specifically, the proposed rule would insert the following clause into all contracts with USDA over the simplified acquisition threshold (currently $150,000):

In accepting this contract award, the contractor certifies that it is in compliance with all applicable labor laws and that, to the best of its knowledge, its subcontractors of any tier, and suppliers, are also in compliance with all applicable labor laws.  The Department of Agriculture will vigorously pursue corrective action against the contractor and/or any tier subcontractor (or supplier) in the event of a violation of labor law made in the provision of supplies and/or services under this or any other government contract.  The contractor is responsible for promptly reporting to the contracting officer when formal allegations or formal findings of non-compliance of labor laws are determined.  The Department of Agriculture considers certification under this clause to be a certification for purposes of the False Claims Act.  The Department will cooperate as appropriate regarding labor laws applicable to the contract which are enforced by other agencies.

Interested parties have until January 30, 2012 to submit comments.  The rule will take effect on February 29, 2012 if no adverse comments are received.  In the event USDA receives adverse comments, the Agency would withdraw the direct final rule and address those comments in a subsequent rulemaking.

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by | December 1, 2011

OFCCP Files Suit Against Cargill Seeking to Cancel Its Federal Contracts and Debar It From Bidding on Future Solicitations

On November 29, 2011, the Office of Federal Contract Compliance Programs (“OFCCP”) filed an administrative complaint with the Office of Administrative Law Judges (“OALJ”) against Cargill Meat Solutions Corporation (“Cargill”) seeking to rescind over $550 million in contracts held by the Company.  According to a press release issued by OFCCP, Cargill allegedly discriminated against 4,069 qualified female and minority applicants for entry-level production jobs at its Springdale, Arkansas establishment.  OFCCP filed the complaint after it was unable to secure a Conciliation Agreement with Cargill.

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Filed under Affirmative Action Plan (AAP), Department of Labor, Discrimination, EEO, Executive Order, OFCCP, Veterans

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by | November 21, 2011

EEOC and OFCCP Enter a New Memorandum of Understanding

On November 7, 2011, the Office of Federal Contract Compliance Programs (“OFCCP”) and the Equal Employment Opportunity Commission (“EEOC”) entered a new Memorandum of Understanding (“MOU”) that allows for greater sharing of information between the agencies and collaboration on enforcement initiatives.  The stated goal of the MOU is “to promote greater efficiency and coordination, and to eliminate conflict and duplication of effort” between the agencies.  There has been a MOU between the two agencies since 1970.  Although the MOU has been updated several times (e.g., 1974, 1981, and 1999), the agencies have rarely coordinated or collaborated on enforcement initiatives.

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Filed under Affirmative Action Plan (AAP), Department of Labor, Discrimination, EEO, OFCCP

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by | November 21, 2011

Department of Defense Issues Final Rule Requiring Contractors to Certify Compliance with Revolving Door Restrictions

On November 18, 2011, the Department of Defense (“DoD”) issued a final rule that requires contractors bidding on solicitations to certify that former DoD officials employed by or receiving compensation from the contractor who are anticipated to work on the contract have complied with their post-employment restrictions under 18 U.S.C. § 207, 41 U.S.C. §§ 2101–2107, and 5 C.F.R. parts 2637 and 2641, including Federal Acquisition Regulation § 3.104–2.  The representation will be required only one time rather than continuously throughout the performance of the contract.  The certification will apply to all solicitations entered on or after November 18, 2011. 

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