On December 21, 2012, the Office of Federal Contract Compliance Programs (“OFCCP”) unveiled its 2013 Unified Agenda of Regulatory and Deregulatory Actions (“Unified Agenda”) on the Office of Management and Budget’s (“OMB’s”) website. In the first-term of the Obama Administration, OFCCP proposed a number of regulatory changes, including significant changes to Section 503 of the Rehabilitation Act and the Vietnam Era Veterans Readjustment Assistance Act (“VEVRAA”) that contemplated requiring contractors to undertake additional affirmative action obligations for individuals with disabilities and covered veterans. In 2012, many of these regulatory initiatives were put on hold in light of the presidential election. Now that President Obama has won reelection, the OFCCP intends to aggressively pursue its regulatory agenda once again.
According to the Unified Agenda, OFCCP is planning to implement or propose several major regulatory initiatives in 2013:
• Final Rules on Section 503 of the Rehabilitation Act: In December 2012, OFCCP released its proposed rules for Section 503 of the Rehabilitation Act. The proposed rules contemplated requiring contractors to undertake a number of additional affirmative action obligations for individuals with disabilities, including establishing a seven percent goal in each job group at the contractors’ establishments for disabled individuals. See our prior post for the details of OFCCP’s proposed changes to Section 503. OFCCP indicated in its Unified Agenda that it plans to release final rules on Section 503 in April 2013.
• Final Rules on VEVRAA: In April 2011, OFCCP released its proposed rules for VEVRAA. Similar to Section 503, the proposed changes to VEVRAA would require contractors to engage in various recordkeeping and other obligations designed to increase protections for covered veterans. See our prior post for more information on OFCCP’s proposed changes to VEVRAA. Through its Unified Agenda, OFCCP has indicated that it plans to release the final rule on VEVRAA in April 2013.
• Proposed Rule on the Compensation Data Collection Tool: In August 2011, OFCCP released an Advanced Notice of Proposed Rulemaking to solicit input on a compensation tool that OFCCP could use to analyze contractors’ compensation practices. In August 2012, the National Academy of Sciences (“NAS”) lambasted OFCCP for failing to articulate adequately how it would analyze compensation data and urged the agency not to move forward with increased data collection requirements until it addressed some of the current deficiencies. Despite these recommendations, OFCCP plans to unveil its new compensation data collection tool through a Notice of Proposed Rulemaking (“NPRM”) in June 2013.
• Proposed Changes to the Sex Discrimination Guidelines: OFCCP intends to issue proposed rules on its Sex Discrimination Guidelines by August 2013. OFCCP has indicated that the Sex Discrimination Guidelines “have not been updated in more than 30 years and warrants a regulatory lookback.” OFCCP plans to “create sex discrimination regulations that reflect the current state of the law in this area” and reflect the increased “participation in the labor force” of women.
• Proposed Regulations for Construction Contractors: OFCCP plans to issue proposed rules revising the regulations governing federal constructions contractors by October 2013. OFCCP has stated that these rules would “enhance the effectiveness of the affirmative action programs of . . . construction contractors” by removing “outdated goals” and giving “contractors increased flexibility to assess their workforce to determine whether disparities in the utilization of women or the utilization of a particular racial or ethnic group in an on-site construction job group exists.”