Total Articles: 26
New "Hiring Goal" for Federal Contractors
The OFCCP, the arm of the US Department of Labor, handles affirmative action obligations for federal contractors.
New National Defense Authorization Act Affects Some Medical Providers’ Status with OFCCP
The National Defense Authorization Act (“NDAA”), signed by President Barack Obama on December 31, 2011 exempts from Office of Federal Contract Compliance Programs (OFCCP) jurisdiction those medical providers who participate in the Department of Defense (DoD) TRICARE program, DoD’s health care program for active and retired military personnel. This legislation is intended to overturn a 2010 U.S. Department of Labor administrative law judge’s ruling that a Florida hospital providing medical services on behalf of a federal contractor that had contracted with the DoD to establish a medical provider network for DoD TRICARE beneficiaries was a covered federal subcontractor subject to OFCCP jurisdiction. Thus, under the NDAA, medical providers that participate solely in the TRICARE program will no longer be deemed federal subcontractors subject to OFCCP jurisdiction.
OFCCP Proposes New 7% Hiring Goal for Individuals with Disabilities
On December 9, 2011, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) published a proposed new rule that would require federal contractors and subcontractors to set a hiring goal of having seven percent (7%) of their workforces be comprised of individuals with disabilities. The proposed rule incorporates the expanded definition of “disability” under the final regulations to the Americans with Disabilities Act Amendments Act of 2008 (ADAAA) and imposes major new requirements for applicant self-identification, data collection and recordkeeping, written reasonable accommodation request procedures, and increased recruitment efforts.
Will Congress Exempt Health Care Providers from Affirmative Action Obligations?
Executive Summary: On December 14, 2011, the House passed H.R. 1540, the National Defense Authorization Act (NDAA), which included language with respect to exempting TRICARE providers from OFCCP jurisdiction.
Will Congress Exempt Health Care Providers from Affirmative Action Obligations?
Executive Summary: On December 1, 2011, the Senate passed a bill (S. 1867) which exempts TRICARE network providers from the jurisdiction of the Office of Federal Contract Compliance Programs (OFCCP). The current House version does not contain a similar exemption; thus, the two bills must be reconciled. The Senate's action is in response to enforcement actions taken by the OFCCP against health care entities based solely on those entities' reimbursement agreements with TRICARE, the government health care program providing benefits to active and retired military personnel and their families.
Department of Labor Issues Final Rule Implementing Executive Order Requiring Service Contract Act Contractors to Hire Predecessor Employees
On August 29, 2011, the Department of Labor's Wage and Hour Division ("WHD") issued a final rule to implement President Obama's Executive Order 13495, Nondisplacement of Qualified Workers Under Service Contracts (the "Executive Order"). The Executive Order 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 or supervisory employees) employed under the predecessor contract, whose employment would be otherwise terminated at the end of the predecessor contract. The Order applies to federal contracts and subcontracts that: (i) involve amounts that exceed the simplified acquisition threshold (currently $150,000) and (ii) are covered by the Service Contract Act ("SCA"). The WHD will announce the effective date of the final rule after the Federal Acquisition Regulatory Council issues its own regulations on the Executive Order.
FEDERAL CONTRACTORS: OFCCP wants to know "What's in Your Wallet"?
Federal contractors, subject to Executive Order 11246, have been required by the Office of Federal Contract Compliance Programs (OFCCP) since 2000 to proactively conduct in-depth analyses of their compensation systems to ensure that those systems were not discriminatory. And since that same year the OFCCP has struggled to gain greater access to contractors' employee compensation data to enforce that aspect of contractors' obligations under the Executive Order regulations.
Change Will Affect Whether Affirmative Action Obligations Apply to Financial Institutions
The U.S. Treasury Department’s Bureau of the Public Debt has announced that, beginning January 1, 2012, financial institutions, such as banks and credit unions, will no longer sell U.S. Savings Bonds. The bonds will be sold solely through the Treasury Department’s website, http://treasurydirect.gov. Thus, financial institutions should evaluate whether they will continue to have federal affirmative action obligations.
Draft Executive Order Could Force Contractors to Disclose Political Contributions
On April 13, 2011, the Obama administration released a draft Executive Order called "Disclosure of Political Spending by Government Contractors" ("Draft Order") that contemplates requiring federal contractors to disclose political contributions when bidding on federal contracts. As currently drafted, the disclosure obligation would require contractors to disclose contributions of the company and its subsidiaries, affiliates, officers and directors. The Draft Order is intended to "increase transparency and accountability" in the contracting system so that the American public is "ensure[d] efficient and economical procurement process[es]."
OFCCP Issues Long-Awaited Functional Affirmative Action Plan (FAAP) Directive
he Office of Federal Contract Compliance Programs (OFCCP) has issued a new Functional Affirmative Action Plan (FAAP) directive that governs the application, updating, modification, renewal, and administration of FAAP agreements. FAAP agreements permit covered federal contractors to develop affirmative action plans (AAPs) along functional or business units, rather than by physical establishment. The release of the directive, effective June 14, 2011, ends OFCCP’s lengthy moratorium on considering new requests for, and modifications to, FAAP agreements.
How can my company be a government contractor if we do not even have a contract?
The Office of Federal Contract Compliance Programs has long held that a company without a federal contract can be a government contractor if it operates as a "single entity" with a subsidiary, parent or other entity that is a federal contractor. But a recent case expanded that principle to a situation in which neither entity was a federal contractor by itself.
What's New For Federal Contractors In 2011 And Beyond
The Office of Federal Contract Compliance Programs (OFCCP), an agency of the U.S. Department of Labor (DOL) that administers and enforces the federal affirmative action laws, has become reenergized and refocused during the Obama administration. The OFCCP has new leadership, is better staffed, better funded, and more motivated than in any previous administration in recent history.
OFCCP Clarifies Coverage Of Health Care Providers...At Least For Now
The Bureau of National Affairs has recently obtained and published a directive signed on December 16, 2010, by Patricia Shiu, Director of the Office of Federal Contract Compliance Programs. The Directive, entitled “Coverage of Health Care Providers and Insurers,” follows three decisions addressing OFCCP jurisdiction over health care providers. The Directive has not yet been published by the OFCCP.
OFCCP Issues Latest Round of Corporate Scheduling Announcement Letters.
Jackson Lewis has learned that the Office of Federal Contract Compliance Programs (OFCCP) has begun issuing its latest round of Corporate Scheduling Announcement Letters (CSALs) to federal contractors with establishments slated for multiple compliance audits during the OFCCPs current fiscal year (October 1, 2010 through September 30, 2011). CSALs give federal contractors with more than one establishment advance notice of the locations slated for Agency compliance audits.
TRICARE Providers Are Federal Subcontractors, Says Judge
In a decision that could expand the jurisdiction of the Office of Federal Contract Compliance Programs over health care providers, an administrative law judge with the U.S. Department of Labor has held that a hospital that subcontracted to provide medical services to TRICARE beneficiaries is a federal subcontractor subject to the affirmative action laws. If not reversed on appeal, this decision could have widespread implications for hospitals, rehabilitation centers and hospices. Any such entity that receives more than $50,000 annually for medical services performed under such a TRICARE subcontract could be subject to OFCCP jurisdiction and required to comply with the affirmative action laws.
TRICARE Providers: Expect OFCCP to Make House Calls
Until recently, hospitals have been fairly successful at staying out of the Office of Federal Contract Compliance Program's (OFCCP) sights. However, in the middle of 2009, OFCCP scored a huge victory in establishing jurisdiction over hospitals that provide health care services to an HMO which, in turn, have a medical services contract with the Office of Personnel Management (OPM). OFCCP v. UPMC Braddock, DOL ARB, No. 08-048 (May 29, 2009). Although the hospitals in UPMC have appealed the Administrative Review Board's (ARB) decision in OFCCP's favor, i.e., that the hospitals in that case were unwitting federal subcontractors, it is anticipated that the district court will agree with the ARB.
Hospital's Participation in TRICARE Subjects it to Federal Contractor Affirmative Action Obligations
Relying on the ARB's 2009 decision in OFCCP v. UMPC Braddock, a federal administrative law judge (ALJ) has held that a Florida hospital is a subcontractor of a managed care services provider's contract between TRICARE and Humana Military Healthcare Services Inc. (HMHS) and, thus, is subject to the affirmative action obligations imposed on federal contractors.
Dodd-Frank Act Requires Federal Agencies to Establish Offices to Evaluate Contractors' Diversity
This legal alert is the second in a series addressing significant areas of reform enacted under the Dodd-Frank Wall Street Reform Act. In our first alert, Sweeping Reforms Imposed by Dodd-Frank Act Create Obligations for Employers, available on our web site at: http://www.fordharrison.com/shownews.aspx?show=6621, we addressed requirements related to executive compensation and corporate governance. This alert addresses an aspect of the Act about which federal contractors should be aware: diversity and inclusion requirements.
Federal Contracting eAuthority (July 2010).
OFCCP Announces Intent to Update Disability Affirmative Action Regulations.
You Thought Executive Compensation In Private Companies Was Actually Private?!?
In the Obama Administrations continuing quest for transparency, the federal government issued an Interim Rule on July 8, 2010, that requires many federal contractors and subcontractors to report and make publicly available the total compensation of their top five executives. The Interim Rule implements the Federal Funding Accountability and Transparency Act of 2006, as amended by the Government Funding Transparency Act of 2008, which requires covered contractors to report information on first-tier subcontracts and the total compensation of the top five executives for both direct contractors and first-tier subcontractors.
Has Your Company Benefitted From the Economic Stimulus?
If your company receives stimulus funds from the U.S. government, you may become a federal contractor, subject to the affirmative action and other compliance requirements of the U.S. Office of Federal Contract Compliance Programs.
But I didn't know I was a federal subcontractor!!
Ignorance of the law is no defense, and lack of knowledge does not protect a company from its affirmative action obligations. In a recent decision that should strike terror in the hearts of employers who think they are not federal subcontractors, the Department of Labors Administrative Review Board extended coverage of the affirmative action laws to a group of hospitals that were medical providers approved by an HMO that had a contract to provide medical care to government employees. The hospitals had no idea they were covered subcontractors.
Health Care Update: Could An Affirmative Action Plan Be In Your Future?
No one would deny that labor and employment law presents a cornucopia of challenges for healthcare executives. Presently, you must contend with employee concerns caused by difficult economic times along with new laws, such as the Lilly Ledbetter Fair Pay Act. On the horizon are possibly even more daunting changes to the legal landscape, such as the Employee Free Choice Act (EFCA) frequently referred to as the card check law. Added to these challenges is the very real possibility that a great many more hospitals and healthcare organizations will have to adopt written affirmative action plans.
New Federal Contractor Code of Business Ethics and Conduct (pdf).
Both the Civilian Agency Acquisition Council and Defense Acquisition Regulations
Council have agreed on a final rule amending the Federal Acquisition Regulation to
require a contractor code of business ethics and conduct and to require the display
of federal agency office of inspector general fraud hotline posters. See 72 F.R.
65873 (2007). This new rule takes effect on December 24, 2007.
Are You Covered by Affirmative-Action Requirements?
Employers covered by federal, state, city, or county affirmative-action requirements must prepare a written affirmative-action program (AAP) and fulfill other applicable requirements. If a company fails to fulfill the requirements, it could lose a desired government contract. If the government contract already has been entered into, the governmental body could take action against the company to enforce compliance, including assessing fines.
AAP Exemption Adopted In Association With Katrina Relief Effort.
U.S. DOL Memorandum to all contracting agencies of the federal government.
