Category Archives: Department of Labor

Executive Order May Block Contractors with Labor Violations from Receiving Federal Contracts

On July 31, 2014, President Obama signed the Fair Pay and Safe Workplaces Executive Order (“Executive Order”) that requires contractors to (1) disclose recent violations of various workplace laws before being awarded federal contracts; (2) provide wage notifications to employees and notify independent contractors of their non-employee status; and (3) barring contractors from requiring employees to sign pre-dispute arbitration agreements. This is slated to take effect for new contractors in 2016.

Background on Executive Order

According to a Fact Sheet released with the Executive Order, the purpose of this executive action is to “crack down” on federal contractors by ensuring that companies with a history of employee rights violations do not receive federal contracts. The White House indicated that the “goal of the process created by the Executive Order is to help more contractors come into compliance with workplace protections, not to deny contracts to contractors.” The Obama Administration also believes that the Executive Order will “promote efficiency in federal contracting” by removing “companies with workplace violations” that are “more likely to encounter performance problems.”

The Executive Order comes on the heels of a series of presidential actions geared towards implementing the Obama Administration’s “Year of Action” agenda in light of the stalemate in Congress. As recent as two weeks ago, President Obama signed an executive order making it illegal for federal contractors to discriminate on the basis of sexual orientation or gender identity.

Covered Contracts

The Executive Order will apply to all federal contracts for goods and services, including construction contracts, where the estimated value of the contract exceeds $500,000. It also requires prime contractors to flow down this requirement to all subcontracts that are not for commercially available off-the-shelf items where the estimated value of the subcontract is over $500,000.

Requirements of Executive Order

Disclosure of Labor Law Violations

As part of the solicitation process for covered contracts, contractors will be required to disclose whether they have any violations of certain federal and state discrimination, wage and hour, leave, and safety laws in the three years prior to bidding on the solicitation. Specifically, the Executive Order requires contractors to disclose violations of the following labor laws:

  • The Fair Labor Standards Act (“FLSA”);
  • The Occupational Safety and Health Act;
  • The National Labor Relations Act;
  • The Davis-Bacon Act;
  • The Service Contract Act;
  • Executive Order 11246;
  • Section 503 of the Rehabilitation Act;
  • The Vietnam Era Veterans Readjustment Assistance Act;
  • The Family and Medical Leave Act;
  • Title VII of the Civil Rights Act;
  • Americans with Disabilities Act;
  • The Age Discrimination in Employment Act;
  • Executive Order 13658 (establishing minimum wages for contractors); and
  • Equivalent state laws, as defined by the Department of Labor guidance.

Violations of these laws includes “any administrative merits determination, arbitral award or decision, or civil judgment” rendered against the contractor in the three years prior to the solicitation.

As part of this disclosure, contractors will have an opportunity to disclose to the contracting officer any “steps taken to correct the violations” or “improve compliance” with these laws, including any agreements the contractor has entered with a federal or state enforcement agency. If the contractor is awarded a contract covered by the Executive Order, the contractor must provide updated disclosures to the contracting officer every six months for the duration of the contract.

Notification of Wages

Contractors will now be required to provide all individuals performing work on the contract a notification “concerning the individual’s hours worked, overtime hours, pay, and any additions made to or deductions made from pay.” This notification must be provided to employees in each pay period. Contractors will not have to include hours worked in the notification for employees who are exempt from the overtime requirements under FLSA or similar state laws if the contractor has previously informed the employee that they are exempt from overtime.

Independent Contractor Notification

The Executive Order requires contractors to provide written notification to individuals they are treating as independent contractors who perform work on contracts covered by the Executive Order. No details have been provided on what information must be included in this disclosure.

No Mandatory Arbitration Agreements

Contractors being awarded contracts with an estimated value of $1 million will no longer be able to require employees or independent contractors to enter pre-dispute arbitration agreements requiring them to arbitrate claims under Title VII of the Civil Rights Act or any tort related to or arising out of sexual assault or sexual harassment claims. This does not apply if:

  • The employee voluntarily consents to the arbitration agreement after a dispute has arisen between the employee and the contractor;
  • The contract is for commercial items or commercially off-the-shelf items;
  • The arbitration agreement was entered prior to the contractor bidding on a contract covered by the Executive Order.

Flow Downs to Subcontractors

Prime contracts must flow down:

  • The requirements to disclose labor law violations for any subcontract of $500,000 or more (except for contracts for commercially available off-the-shelf items)
  • The requirement to provide employees with wage notifications and independent contractors notification of their status in all subcontracts of $500,000 or more (except for contracts for commercially available off-the-shelf items); and
  • The requirement prohibiting certain pre-dispute arbitration agreements for subcontracts with an estimated value exceeding $1 million.

In addition, prime contractors must represent to the contracting officer that:

  • The prime contractor will require each subcontractor to disclose labor law violations to it and update this information every six months; and
  • Before awarding the subcontract, the prime contractor will consider the disclosures submitted to it by the subcontractor to determine whether the subcontractor is “a responsible source that has a satisfactory record of integrity and business ethics”.

If violations of labor laws are brought to the attention of the prime contractor, the prime contractor must consider whether “action is necessary”, including whether to award the subcontract or taking remedial measures if the subcontract is already awarded.

Determination of Violations

Before awarding contracts of $500,000 or more, contracting officers are required to consider these disclosures to determine whether the contractor “is a responsible source that has a satisfactory record of integrity and business ethics.” The Executive Order has instructed the FAR Council, in consultation with the Department of Labor and other agencies, to issue regulations that provide guidance on what labor law violations “demonstrate a lack of integrity or business ethics” because they are “serious, repeated, willful, or pervasive violations.”

Although contractors will have to wait until the final regulations are issued to understand what types of labor law violations the government may block them from receiving contracts, the Executive Order provides the following guidance:

  • A “single violation of law may not necessarily give rise to a determination of lack of responsibility”, but it will depend on the “nature” of the violation.
  • To the extent existing standards under those labor laws do not provide guidance on the types of violations that are considered “serious, repeated, willful, or pervasive violations”, the government will use the following standards:
    • Violations are “serious” based on, among other considerations: (1) the number of employees affected; (2) the degree of risk posed or actual harm done by the violation to the well-being of the worker; (3) the amount of damages incurred or fines or penalties assessed for the violation;
    • Violations are “repeated” if the contractor has “had one or more additional violations of the same or a substantially similar requirement in the past three years”;
    • Violations are “willful” if the contractor “knew of, showed reckless disregard for, or acted with plain indifference” to whether it was in compliance with these labor laws; and
    • Violations will be considered “pervasive” by comparing the “number of violations” of these labor laws in relation to the size of the contractor.

Contracting officers must give consideration to “any remedial measures or mitigating factors”, such as any corrective actions taken by the contractor. The Executive Order also instructs contracting officers to send information to the “agency suspending or debarring official” as appropriate for serious violations.

Website

The federal government will be developing a website for contractors to report information required by the Executive Order as well as other federal contractor reporting requirements.

Effective Date

The Executive Order will be implemented on all covered contracts in stages on a “prioritized basis” starting in 2016.

 

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Filed under Department of Labor, Executive Order, OFCCP

OFCCP Announces Timeline for Issuing Proposed Rules on President Obama’s Compensation Agenda

The Office of Federal Contract Compliance Programs (“OFCCP”) plans to issue proposed rules implementing President Obama’s recent executive actions on the compensation practices of federal contractors. As we reported last month, President Obama took two executive actions to further his pay equity agenda: (1) he signed Executive Order 13665 prohibiting federal contractors from discriminating and retaliating against employees or applicants for discussing their compensation with one another; and (2) he issued a memorandum (“Memorandum”) directing OFCCP to publish regulations requiring federal contractors and subcontractors to submit pay data by race and gender for their employees.

According to the Department of Labor’s spring 2014 regulatory agenda, OFCCP intends to publish its proposed rules on the Memorandum in August 2014 and the proposed rules under EO 13665 in September 2014. OFCCP also revealed that it was pushing back dates for two key regulatory changes, presumably to accommodate the presidential mandate for OFCCP to publish rules on EO 13665 and the Memorandum. In its 2014 regulatory agenda for the year, OFCCP indicated that it would be issuing proposed rules on its regulations for construction contractors in April 2014 and on its Sex Discrimination Guidelines in May 2014. Now, OFCCP has announced that it will not be issuing the proposed updates to the Sex Discrimination Guidelines until September 2014 and moved the date for the proposed overhaul of its regulations for construction contractors until January 2015.

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President Obama Takes Executive Action Reinforcing the Regulatory Agenda on Investigating Federal Contractors’ Compensation Practices

In recognition of National Pay Equity Day, President Obama took two executive actions on April 8, 2014 to continue his pay equity agenda: (1) President Obama signed Executive Order on Non-Retaliation for Disclosure of Compensation Information (“Executive Order”) amending Executive Order 11246 to prohibit federal contractors from discriminating or retaliating against employees or applicants for discussing their compensation with one another; and (2) President Obama issued a memorandum directing the Department of Labor (“DOL”) to publish regulations requiring federal contractors and subcontractors to submit pay data, by race and gender, for their employees (“Compensation Memorandum”). These executive actions, along with President Obama’s Executive Order to increase the minimum wage for employees working on federal contracts, mark another significant step in this Administration’s push for increasing enforcement and oversight over federal contractors’ compensation practices.

Executive Order

The Executive Order mandates that federal contractors cannot “discharge or in any manner discriminate against” employees and applicants who have “inquired about, discussed, or disclosed” their own or another employee’s or applicant’s compensation information. The Executive Order explains that the reason for this change is that it will “enhance the ability of Federal contractors and their employees to detect and remediate unlawful discriminatory practices, which will contribute to a more efficient market in Federal contracting.”

The Executive Order excludes from this protection unauthorized disclosures by employees who learn of the compensation information as part of their essential job functions (e.g., HR and compensation managers) unless (1) they are disclosing compensation information to someone who already has access to that information; or (2) they are disclosing that in response to a formal complaint or charge in furtherance of an investigation. DOL will be required to issue regulations implementing this requirement by September 15, 2014.

Compensation Memorandum

The Compensation Memorandum is premised on a claim that the pay gap between men and women is a direct result of a “lack of sufficiently robust and reliable data on employee compensation.” It directs DOL to propose regulations requiring federal contractors and subcontractors to submit data on the compensation paid to their employees, including data by sex and race.

When creating the proposed regulations, the Executive Order instructs DOL to consider:

  • “maximiz[ing] efficiency and effectiveness” by focusing efforts on contractors where the reported data shows pay violations;
  • using the data to “encourage greater voluntary compliance” with compensation laws by federal contractors and “analyz[ing] industry trends”;
  • minimizing the burden on federal contractors, particularly small businesses; and
  • “avoid[ing] new record-keeping requirements” by relying on “existing reporting frameworks to collect the summary data.”

Despite DOL’s announcement in its current regulatory agenda that OFCCP planned to publish a Notice of Proposed Rulemaking (“NPRM”) on the compensation data collection tool in January 2014, no proposal has yet been published. The Presidential Memorandum will expedite the publication of NPRM because it directs the DOL to propose regulations by August 6, 2014.

Impact on Federal Contractors

The Executive Order prohibiting discrimination and retaliation against employees and applicants does not change much for federal contractors. Sections 7 and 8 of the National Labor Relations Act already provide employees and applicants the right to discuss their compensation information.

The effect of the Compensation Memorandum’s requirement that contractors to disclose their compensation information could be significant, but the precise impact will depend on the details of the regulations. As of now, it is unclear whether OFCCP will develop new or additional compensation reporting requirements and how OFCCP will use the compensation tool to store and analyze compensation data.

We expect OFCCP to continue to ratchet-up its investigation of contractors’ compensation information during audits. This means that contractors should be vigilant about reviewing their compensation practices now and proactively addressing pay disparities before an audit. Now is the time for contractors to consider undertaking pay equity studies and reviews of their compensation policies and practices under the protection of the attorney-client privilege.

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Filed under Compensation, Department of Labor, OFCCP

OFCCP Corrects Proposed Changes to Its Complaint Form

On February 19, 2014, OFCCP published a correction to its notice seeking comments on its form for individuals to file discrimination and retaliation complaints.  The complaint form, which is designated as Form CC-4, requests information from individuals making complaints of discrimination and retaliation against federal contractors and subcontractors, including whether the complainant believes the contractor has discriminated or retaliated against others.  OFCCP has shown an increasing interest in pursuing individual complaints of discrimination and retaliation over the last few years, and these proposed changes suggests that it plans to continue the trend.

The original notice published in the Federal Register on February 5, 2014 provided a slightly revised version of the Form CC-4 and sought comments on:

  • Whether the proposed collection of information is useful or necessary for OFCCP to perform its functions;
  • Whether OFCCP accurately estimated the burden of collecting this information; 
  • Whether any improvements needed to be made to the quality, utility and clarity of the information requested in the form; and
  • How to minimize the burden on those who are completing the form, such as permitting electronic submissions.

 In the correction notice, OFCCP made several revisions to its notice and proposed complaint form, including:

  • Revising the statement in the notice that incorrectly indicated that the proposed complaint form was currently available on OFCCP’s website; and
  • Updating several fields that were left blank in the proposed complaint form, including the three fields located in the left-hand column and the third and bottom rows of the form.

 Interested parties will still have until April 7, 2014 to submit comments on the proposed complaint form.

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Filed under Department of Labor, Discrimination, OFCCP

Cargill Agrees to Pay $2.2 Million to Settle Hiring Discrimination Charges By OFCCP

On January 22, 2014, the Office of Federal Contract Compliance Programs (“OFCCP”) announced that it was settling a case with Cargill Meat Solutions (“Cargill”) for $2.2 million relating to allegations of hiring discrimination based on race and gender.  The settlement stemmed from OFCCP’s investigation of multiple Cargill facilities between 2005 and 2009.  During these reviews, OFCCP alleged that Cargill’s hiring practices for production jobs at several of its facilities discriminated against 2,959 females, African-American, Hispanic, and Caucasian applicants.  OFCCP also allegedly found a number of record-keeping violations at Cargill.

In addition to paying $2,236,218 in back wages, Cargill also agreed to extend job offers to 354 former applicants who were rejected for positions and to undertake extensive self-monitoring measures to ensure full compliance with OFCCP’s laws.

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OFCCP Receives Final Approval of New Voluntary Self-Identification Form for the Disabled

On January 22, 2014, the Office of Management and Budget (“OMB”) approved the Office of Federal Contract Compliance Program’s (“OFCCP’s”) new self-identification form for individuals with disabilities.  According to OFCCP’s new regulations under Section 503 of the Rehabilitation Act (“Disability Regulations”), federal contractors and subcontractors will be required to use this new form to offer all applicants and employees an opportunity to self-identify as individuals with disabilities. 

After receiving thoughtful comments from the contractor community, there were number of improvements that were made to proposed version.  For example, the final form now includes a section for applicants to indicate that they do not have a disability and allows candidates to identify their name and the date the form was completed.  Significantly, however, the form still asks individuals to disclose if they “ever had a disability.”  This is problematic because this may increase the number of candidates who self-identify as disabled thereby (1) increasing the chance of there being statistically significant adverse impact on unselected applicants who self-identified as disabled; and (2) increasing contractors exposure to failure to hire claims under the “regarded as” prong of the ADA because employers will be on notice that these candidates are disabled.

Despite some of the lingering concerns with the form, contractors must prepare to put this in place by their first affirmative action plan cycle following the March 24, 2014 effective date of the Disability Regulations.  Contractors will be required to use this exact form without modification, but they can create an electronically fillable copy of the form that displays the OMB number and expiration date, contains the text of the form without alteration, use a sans-serif font (such as Arial or Calibri), and at least 11-pitch font size (with the exception of the footnote and burden statement, which must be at least 10-pitch in size).  Contractors will also be required to provide this form to applicants both pre and post-offer, and the form must be provided to employees at least once every five years.

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

OFCCP Concedes ALJ Ruling that “Non-Asian” Is Not a Proper Class

The Office of Federal Contract Compliance Programs (“OFCCP”) filed a notice on September 19, 2013 with the Department of Labor’s Administrative Review Board (“ARB”) indicating that it will not appeal the Administrative Law Judge’s (“ALJ’s”) ruling in OFCCP v VF Jeanswear Ltd Partnership, (ALJ Case No 2011-OFC-00006, Krantz, K), that “non-Asian” does not constitute a “race” for the purposes of Executive Order 11246 enforcement.

ALJ Ruling

On August 5, 2013, the ALJ ruled that OFCCP could not pursue a finding of discrimination against a contractor on behalf of “non-Asians.”  In that case, OFCCP alleged that VF Jeansware discriminated against 288 “non-Asian” applicants for positions in its Operative job group at its Winston-Salem, North Carolina establishment.   OFCCP alleged there was statistically significant adverse impact against “non-Asians” based on VF Jeansware hiring only sixteen percent of the incumbents for Operative positions from its non-Asian applicant pool as compared to hiring nearly forty-four percent of the Asian applicant pool for positions in that same job group. 

Upon review, the ALJ held that OFCCP could not establish a discrimination claim against “non-Asians” because “non-Asians” were not a protected class.  Although the ALJ acknowledged there was disparate impact on “non-Asians”, he found that “non-Asian” is not a term defined in the regulations and was an aggregate of three ethnic groups (i.e., Whites, African-Americans, and Hispanics).  The ALJ noted that while Whites were underrepresented, African Americans were close to the percentage of African-Americans available in the regional data and Hispanics were actually “overrepresented.”  The ALJ also explained that the only accepted “race” and “ethnic group” classifications for both EEOC and OFCCP purposes are African-American, Native American/Alaskan Native, Asian/Pacific Islander, Hispanic, and White.  Although “non-whites” can constitute a protected class of “minorities”, the regulations do not recognize other “non-” classifications for the purposes of analysis and enforcement. 

OFCCP had thirty days to appeal the ALJ’s ruling to the ARB.  OFCCP filed a notice with the ARB on September 19, 2013 waiving its right to appeal the ALJ’s ruling, and, on September 25, 2013, the ARB issued an order closing the case.

Impact of Ruling

Over the last several years, OFCCP has moved away from conducting adverse impact and disparity analyses at the aggregate level of comparing minorities to non-minorities (i.e., White).  Instead, OFCCP has increasingly been comparing sub-minority and ethnic groups to find cases of disparate impact.  In some instances, such as the VF Jeanswear case, OFCCP has been aggregating certain ethnic and minority groups to increase their odds of finding disparate impact.  Many in the contractor community believed that this type of analysis was unsound and unsupported by the Title VII principles that apply to OFCCP discrimination cases.

The ALJ’s ruling along with OFCCP’s decision not to challenge it emphasizes that OFCCP cannot base discrimination claims on these aggregate ethnic and racial groups.  Contractors, however, should still be prepared during audits for OFCCP to analyze their selection decisions by comparing the highest group selected against each sub-minority or ethnic group that was not selected.

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Filed under ALJ, ARB, Department of Labor, Discrimination, OFCCP

OFCCP Unveils Its Game-Changing Final Rules for Veterans and Individuals with Disabilities

On August 27, 2013, the Office of Federal Contract Compliance Programs (“OFCCP”) released the long awaited final rules increasing protections for veterans under the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (“VEVRAA”) and individuals with disabilities under Section 503 of the Rehabilitation Act of 1973 (“Section 503”).  These new rules will require federal contractors to engage in a number of additional affirmative action and other requirements related to the hiring and retention of veterans and individuals with disabilities. 

As expected, the final rules deviate little from the rules OFCCP proposed for veterans and individuals with disabilities in 2011.  We will be providing additional analyses of these final rules in the coming weeks, but we have provided a brief summary of some of the highlights of the final rules below.  Hold on to your hats as OFCCP continues its game-changing year.

Highlights of Changes to the Veterans Regulations

  •  Hiring Benchmarks: Under VEVRAA, contractors will now be required to set annual hiring benchmarks for protected veterans.  Contractors can establish benchmarks either (1) equal to the national percentage of veterans in the civilian labor force, which will be provided by OFCCP annually; or (2) establish their own benchmarks using certain data from the Bureau of Labor Statistics and the Veterans’ Employment and Training Service/Employment and Training Administration that will also be published by OFCCP, as well other factors that are unique to the contractor’s hiring circumstances.
  •  New Data Collection and Analyses Requirements:  Contractors will be required for the first time to “document and update annually several quantitative comparisons” analyzing the number of veterans hired by the contractor.  Contractors must maintain this data for at least three years.
  • Revised Procedures for Self-Identification: Before these final rules were issued, contractors were required to offer applicants an opportunity to self-identify their veteran status after being offered employment with the contractor.  Under the new rules, contractors are now required to offer candidates an opportunity to self-identify as covered veterans both before and after the offer phase in the application process.
  • Mandatory Flow-Down Language: OFCCP is now mandating that contractors use specific language to flow down the veteran requirements to covered subcontractors.
  • Required Forms: Contractors will now be required to implement certain formats for listing job openings with State or local job services.

Highlight to Changes to the Disability Regulations

  • Mandatory Utilization Goal:  The final rule for Section 503 mandates contractors set hiring benchmarks for individuals with disabilities.  Contractors will be required to establish a nationwide seven percent utilization goal and conduct annual utilization analyses for individuals with disabilities.  The goal will apply to each job group in the contractor’s affirmative action plan or, for contractors with 100 or fewer employees, their entire workforce. 
  • New Data Collection and Analyses Requirements: Similar to the requirements relating veterans, contractors will also for the first time be required to “document and update annually several quantitative comparisons” analyzing the number of individuals with disabilities hired by the contractor.  Contractors will also be required to maintain this data for at least three years.
  • Revised Procedures for Self-Identification: Prior to the final rules on Section 503, contractors only invited candidates to self-identify their disability status after they were offered employment.  The new rules change that requirement to now obligate contractors to offer candidates an opportunity to self-identify as individuals with disabilities both before and after the offer phase in the application process.  In addition, contractors must use specific language proscribed by OFCCP and offer employees an opportunity to self-identify as individuals with disabilities every five years.
  • Mandatory Flow-Down Language:  Contractors will be required to use OFCCP’s specific language to flow down Section 503 requirements to covered subcontractors.

OFCCP Provides Guidance and Training on Final Rules

For both of the final rules, OFCCP has provided webpages with additional information, including the text of the final rules, fact sheets, and frequently asked questions.  OFCCP will also be holding webinars explaining the final rules on August 30 and September 18 for Section 503 and on August 29 and September 11 for VEVRAA.  You can sign up for these webinars and find the additional information by following these links: Section 503 and VEVRAA

Effective Date of Final Rules

The final rules are expected to be published in the Federal Register within the next two weeks and will take effect 180 days after publication.  This means that contractors will have to implement many of these requirements by the spring of 2014.

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

OFCCP Continues to Overhaul Its Investigatory Platform with the Release of the New Federal Contractor Compliance Manual

Late last week, OFCCP released the much anticipated update to the Federal Contractor Compliance Manual (“FCCM”).  The FCCM provides the procedural framework compliance officers use when auditing federal contractors and subcontractors.  The last version of the FCCM was published in the late 1980s, and OFCCP has been hinting over the last couple of years that it would be releasing a new FCCM.

The new 500-plus page FCCM includes the same basic structure as the previous version, but adds a new section for reviews of functional affirmative action plans.  The FCCM has also been updated to reflect OFCCP’s current policies and procedures regarding investigating contractor’s practices for compliance and the remedies it will pursue if violations are uncovered.  For example, the new FCCM contains new procedures for compliance officers to use when conducting adverse impact analyses, reviews of compensation, and calculating back pay awards for discrimination.

The new FCCM covers the following topics:

  • Desk audits of contractors’ compliance with OFCCP’s laws;
  • Onsite reviews of contractors’ establishments;
  • Compliance reviews of construction contractors;
  • Procedures for conducting Corporate Management Compliance Evaluations;
  • Compliance reviews of FAAPs;
  • Investigations of individual and class complaints;
  • Designing remedies for employment discrimination violations; and
  • Procedures for resolving violations during compliance evaluations.

The FCCM also contains a glossary of key words and phrases and includes examples of model forms, letters, and worksheets compliance officers can use during compliance evaluations. 

OFCCP was quick to note that the revised FCCM is nonbinding and is “subject to change without public notice.”  OFCCP released the new FCCM internally to its compliance officers earlier this summer, so many of them are prepared to implement the new procedures in the FCCM.  OFCCP also held a public webinar explaining the updated FCCM on August 27, 2013 and will be making the slides and recording from the webinar available on its website.

We anticipate that with the official release of the FCCM, contractors will notice a change in the posture of audits.  For the last several years, OFCCP has been overhauling its entire investigatory platform “piece-by-piece,” including revamping how it investigates contractors’ compensation systems.  The new FCCM is yet another signal that OFCCP will be conducting more intensive and far-reaching reviews of contractors’ practices.

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

OFCCP Moves Closer to Finalizing Game-Changing Regulations for Individuals with Disabilities and Veterans

On July 31, 2013, the Office of Federal Contract Compliance Programs (“OFCCP”) submitted to the Office of Management and Budget (“OMB”) for approval its final regulations for individuals with disabilities under Section 503 of the Rehabilitation Act.  This comes on the heels of OFCCP submitting the final regulations for covered veterans under the Vietnam Era Veterans Readjustment Assistance Act (“VEVRAA”) to OMB on Tuesday.  OMB will have sixty (60) days to approve or reject these final regulations.

As we previously reported, if passed in their final form, these regulations will usher in game-changing requirements for federal contractors and subcontractors subject to OFCCP’s jurisdiction.  In April 2011, OFCCP released its proposed changes to VEVRAA.  Under OFCCP’s proposed changes, contractors would be required to engage in a number of additional recordkeeping and other obligations designed to increase protections for covered veterans.  See our prior post for a complete list of the proposed changes under VEVRAA.

In December 2012, OFCCP also released proposed changes to Section 503 of the Rehabilitation Act.  The proposed rules contemplate 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. The complete details concerning the proposed changes to Section 503 can be found here

Now that the new Department of Labor Secretary Perez has finally been confirmed, OFCCP will move very quickly to put these and other backlogged items on its regulatory agenda into action.   We will continue to monitor these developments and inform you of any further changes.

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