Total Articles: 183
Jackson Lewis P.C. • February 09, 2020
Companies doing business with the federal government must comply with a litany of complex laws and regulations that affect their day-to-day business operations.
Jackson Lewis P.C. • February 03, 2020
In a surprising turn of events, the White House has announced today President Trump’s intent to nominate current OFCCP Director Craig Leen to the position of Inspector General of the Office of Personnel Management.
Jackson Lewis P.C. • January 31, 2020
The recently updated Construction Contractors Technical Assistance Guide (“TAG”) provides construction contractors substantial guidance in understanding their AAP obligations and how to fulfill those obligations. Helpfully, the TAG addresses both technical compliance as well as best practices to achieve the spirit of the relevant statutes.
Jackson Lewis P.C. • January 29, 2020
While it feels like we just finished the EEO-1 reporting season, the time is here again to start preparing for filing of the “traditional” annual EEO-1 survey. As it has for years, EEOC will again this year look to collect race and gender data from eligible employers. Component 1 of the EEO-1 (not to be confused with the controversial and litigation-embroiled pay data Component 2) is currently due to be filed with the EEOC by March 31, 2020. However, the EEO-1 reporting portal is not yet opened.
Jackson Lewis P.C. • December 30, 2019
OFCCP has published a Notice of Proposed Rulemaking (NPRM or Proposed Rule) proposing to codify procedures the agency uses to resolve potential violations of the affirmative action laws the agency enforces. If approved, the regulation would significantly clarify (if not alter) both the procedures and substantive rules according to which OFCCP seeks to resolve allegations of discrimination in employment decisions, including pay practices.
Littler Mendelson, P.C. • December 27, 2019
On December 20, 2020, the president signed legislation, the National Defense Authorization Act (NDAA) for Fiscal Year 2020, which includes the federal Fair Chance Act (“the Act”).
Jackson Lewis P.C. • November 17, 2019
In a welcome turn for federal contractors, OFCCP last week submitted a proposed regulation to codify Directive 2018-01 – Use of Predetermination Notices (PDN). The regulation would require OFCCP to issue a Predetermination Notice (PDN) in every audit summarizing the Agency’s preliminary “discrimination” findings before issuing a Notice of Violation (NOV).
Jackson Lewis P.C. • November 05, 2019
As previewed earlier this year, OFCCP is scheduled to publish on November 6, 2019 its proposed rule making addressing jurisdiction for TRICARE contractors and subcontractors. As a reminder, OFCCP has had an audit moratorium in place since 2014 for employers that participate in TRICARE.
Littler Mendelson, P.C. • November 04, 2019
Government contractors received a treat for Halloween, as President Trump issued an Executive Order on October 31, 2019 designed to ease the burden on successor contractors to federal service contracts and “to promote economy and efficiency in Federal Government procurement.”
Jackson Lewis P.C. • November 03, 2019
President Donald Trump signed an executive order on October 31 revoking the obligation of successor government service contract employers to offer their predecessor employers’ employees the right of first refusal in positions for which they are qualified.
Jackson Lewis P.C. • November 03, 2019
In an Executive Order issued yesterday, President Trump revoked Obama-Era Executive Order 13495, which provided some protection – a right of first refusal for continued employment – to qualified service workers when a government contract was replaced with a new contract and successor contractor at the same location. President Trump’s Executive Order provides no explanation for the revocation, but the move was likely influenced by the new Secretary of Labor, Eugene Scalia.
Franczek Radelet P.C • October 15, 2019
On October 1, a federal trial court in Massachusetts upheld Harvard University’s use of race in its admissions process against a challenge that the policy discriminates against Asian-American students on the basis of race. The decision followed a long line of U.S. Supreme Court cases holding that colleges and universities may use race as a “plus factor” among many in admissions decisions.
FordHarrison LLP • October 14, 2019
Executive Summary: The long-awaited decision from a federal judge in Massachusetts was released on September 30, 2019 finding Harvard College’s admissions policy, where in race is considered a limited factor when admitting applicants, is constitutional. On September 30, 2019, Federal District Court Judge Allison D. Burroughs held that Harvard’s admission policy passed constitutional muster because it serves a compelling, permissible and substantial interest in increasing and maintaining student diversity, and the admissions program is narrowly tailored to that purpose.
Ogletree Deakins • October 14, 2019
On October 11, 2019, the Office of Federal Contract Compliance Programs (OFCCP) published to its website the long-awaited Educational Institutions Technical Assistance Guide (TAG). According to OFCCP, the 80-page TAG, “provides a general overview of contractor obligations specific to Educational Institutions under the equal employment opportunity laws enforced by OFCCP” and can be used “as a self-assessment tool” for educational institutions “to create, review, and update their affirmative action programs.”
Jackson Lewis P.C. • October 11, 2019
At a time when the Agency has begun embarking on Section 503 Focused Reviews, OFCCP continues work to prevent discrimination for individuals with disabilities. Last week, as national disability awareness month began, OFCCP quietly published a request to tweak its prescribed disability self-identification form. The revisions seek to streamline the form and provide additional guidance to applicants and employees asked to complete the form seemingly in the hopes of increasing participation.
Ogletree Deakins • October 08, 2019
On October 3, 2019, the Office of Federal Contract Compliance Programs (OFCCP) published a notice in the Federal Register proposing changes to the required voluntary self-identification form that all federal contractors and subcontractors use when soliciting disability status from applicants and employees. The current form expires in January of 2020.
Jackson Lewis P.C. • September 24, 2019
Since the Government Accountability Office (GAO) issued its Recommendations to Strengthen the Office of Federal Contract Compliance Programs’ Oversight of Federal Contractors’ Nondiscrimination Compliance in July 2016, OFCCP has taken steps to implement its recommendations. And now, the GAO has issued a progress report evaluating OFCCP’s actions toward the 2016 recommendations.
Ogletree Deakins • September 24, 2019
Pre- and post-job offer physical ability tests (PATs) continue to face challenges from the Equal Employment Opportunity Commission (EEOC) and the Office of Federal Contract Compliance Programs (OFCCP) and occasionally private litigants.
Jackson Lewis P.C. • September 06, 2019
Avid readers have seen that OFCCP has been busy this summer. In August alone, the Agency attended the 2019 ILG National Conference in Milwaukee, issued FAQs on student workers, proposed a new rule regarding religious exemptions, introduced a new Ombudsperson, opened a contractor assistance portal and issued multiple technical assistance guides. But, OFCCP is not content merely coasting through the end of its fiscal year (on September 30).
Jackson Lewis P.C. • September 05, 2019
As the Agency is ramping up its enforcement efforts on behalf of individuals with disabilities, OFCCP is offering another form of technical assistance to contractors. On September 11, 2019 OFCCP will be hosting a Section 503 Focused Review webinar during with the agency will touch upon:
Ogletree Deakins • August 19, 2019
On August 15, 2019, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) released a Notice of Proposed Rulemaking (NPRM) focused on clarifying the civil rights protections for religious organizations that have federal contracts. Keeping with the Trump administration’s policy to enforce the religious freedom found in federal law, the proposed rule is intended to provide the broadest protection of religious rights recognized under the U.S. Constitution and other laws, such as the Religious Freedom Restoration Act. It does not, however, exempt federal contractors from adhering to other required affirmative action obligations.
Jackson Lewis P.C. • August 18, 2019
As previewed in the Spring regulatory agenda, the Office of Federal Compliance Contract Programs (OFCCP) has proposed a new rule to clarify aspects of a religious exemption available to federal contractors. In the proposed rule, the agency said it intends to address concerns from religious organizations that ambiguity in the exemption left them reluctant to participate in federal contracts.
Ogletree Deakins • August 12, 2019
The Office of Federal Contract Compliance Programs (OFCCP) announced on Friday, August 9, 2019, the appointment of Marcus Stergio to fill the ombudsman role in the agency’s national office. Stergio has varied experienced in dispute resolution and holds both a master’s degree in conflict resolution from the University of Massachusetts Boston and participated in Harvard Law School’s Program on Negotiation. Stergio’s role with the agency is to facilitate the resolution of disputes raised by contractors and other stakeholders, in conjunction with regional and district OFCCP offices.
Jackson Lewis P.C. • August 11, 2019
Though we may be in the height of summer, there is no slowing down for OFCCP. Following last week’s ILG National Conference, OFCCP has continued to release additional guidance and assistance for contractors. Most recently, OFCCP has introduced its Ombudsperson and unveiled a Contractor Assistance Portal.
Jackson Lewis P.C. • August 05, 2019
Under the leadership of Craig Leen, OFCCP has made a renewed commitment to providing technical assistance to contractors. True to their word, and in furtherance of its Town Hall Action Plan, OFCCP announced on Friday the release of a number of new technical assistance guides (TAGs), with more on the way. Interestingly, Director Leen did not make any formal announcement of their upcoming release during last week’s ILG National Conference.
Ogletree Deakins • August 04, 2019
On August 2, 2019, the Office of Federal Contract Compliance Programs announced the release of its new compliance assistance guides. Among the new guides are:
Jackson Lewis P.C. • August 01, 2019
The 2019 ILG National Conference being held in Milwaukee, Wisconsin has officially begun.
Littler Mendelson, P.C. • July 26, 2019
On July 22, 2019, the Office of Federal Contract Compliance Programs (OFCCP) issued its second Opinion Letter since November 30, 2018, when Directive 2019-03 announced the agency’s intent to begin delivering such guidance to the contractor community. OFCCP’s July 22 Opinion Letter provides guidance as to whether contractors can collaborate with the agency to develop Pay Analysis Groupings (PAG) that OFCCP would then accept as valid for use in future compliance evaluations.
Littler Mendelson, P.C. • July 26, 2019
The U.S. Office of Federal Contract Compliance Programs (OFCCP) released two new FAQs this week. The new guidance documents address three topics: validation of tests used by contractors when selecting workers for employment, OFCCP's use of “practical significance” during compliance evaluations, and how contractors can determine whether to include project-based or freelance workers in their affirmative action programs (AAPs).
Jackson Lewis P.C. • July 26, 2019
Functional affirmative action plans (FAAPs) are not new. While the regulations require AAPs be prepared on an establishment-basis, OFCCP has permitted contractors to structure their AAPs by “function” or “business unit” – with Agency approval.
Ogletree Deakins • July 26, 2019
In keeping with its commitment to promoting transparency, this week the Office of Federal Contract Compliance Programs (OFCCP) released an official opinion letter concerning pay analysis groupings (PAGs) and three sets of frequently asked questions (FAQs)—all of which are intended to provide additional compliance assistance to federal contractors.
Jackson Lewis P.C. • July 23, 2019
In just its second Opinion Letter, OFCCP has [somewhat] tackled the issue of Pay Analysis Groups (PAGs). Issued two months after the inaugural Opinion Letter which addressed the issue of Pell Grants, Director Craig Leen’s second letter touches upon the more controversial topic of compensation.
Jackson Lewis P.C. • July 14, 2019
This is the second blog post in our series discussing the Office of Management and Budget’s (OMB’s) request for further comments on OFCCP’s proposed scheduling letters and itemized listings, which were first published in April.
Jackson Lewis P.C. • July 08, 2019
In April, OFCCP proposed four new scheduling letters – one each for its establishment reviews, compliance checks, and separate but related letters for its focused reviews on Section 503 (disability) and VEVRAA (veteran) compliance. These proposed letters, if approved, would have significantly increased the burden of the submission required in the event of a review. The notice and comment period closed for these letters on June 11, with many weighing in with questions, describing burdens, and requesting changes. On July 1, OMB published notice that it would begin reviewing amended letters from OFCCP—with comments due July 29.
Jackson Lewis P.C. • May 16, 2019
OFCCP Director Craig Leen thinks the Agency has made good progress on implementing “the four pillars” but there is still work to be done.
Ogletree Deakins • May 10, 2019
On May 8, 2019, the Office of Federal Contract Compliance Programs (OFCCP) went live with a new Compliance Checks webpage. Similar to the recent Section 503 focused reviews landing page, the Compliance Checks webpage offers federal contractors a variety of resources that will assist in preparing for and responding to a compliance check review. OFCCP’s new webpage links to:
Jackson Lewis P.C. • April 23, 2019
This, our third and final blog in a series discussing the proposed changes to OFCCP’s scheduling letters, takes a look at the Agency’s proposed changes to the establishment review letter and itemized listing.
Jackson Lewis P.C. • April 21, 2019
This is the second in our series of blogs on OFCCP’s proposed changes to its various scheduling letters.
Jackson Lewis P.C. • April 15, 2019
Last Week, OFCCP Director Craig Leen and Deputy Assistant Secretary of the Office of Disability Employment Policy (“ODEP”) Jennifer Sheehy, joined with the National Industry Liaison Group to discuss disability and inclusion.
Jackson Lewis P.C. • April 14, 2019
On April 12, 2019, OFCCP posted on the Federal Register for Notice and Comment revised scheduling letters for Section 503 and VEVRAA Focused Reviews, Compliance Checks and regular establishment compliance reviews. The proposed Establishment and Focused Review scheduling letters significantly increase the data submission required for veterans and individuals with disabilities, including hiring and compensation information. Comments are due June 11, 2019.
Jackson Lewis P.C. • March 27, 2019
The Office of Federal Contract Compliance Programs (OFCCP) has publicly released its first Corporate Scheduling Announcement List (CSAL) of 2019 on its website on March 25. There are 3,500 establishments on this CSAL. The CSAL advises employers of the company locations targeted for OFCCP audits of their Affirmative Action Program (AAP).
Littler Mendelson, P.C. • March 27, 2019
On March 25, 2019, the Office of Federal Contract Compliance Programs (OFCCP) published its FY 2019 Corporate Scheduling Announcement List (CSAL). The CSAL provides federal contractors with at least 45 days’ notice of an impending compliance evaluation (audit) by the OFCCP. Accordingly, compliance evaluation Scheduling Letters issued pursuant to this CSAL will be sent to contractors no earlier than May 9, 2019. Importantly, unlike in past years, OFCCP will not accompany the CSAL with letters to contractors further alerting them to the coming audit. Instead, the list will merely be posted on the OFCCP’s website.
Jackson Lewis P.C. • March 27, 2019
Just in time for its next round of audits, OFCCP has released its annual review of the Vietnam Era Veterans Readjustment Assistance Act (“VEVRAA”) benchmark. And for the fifth consecutive year, the benchmark has been reduced benchmark. It is now at 5.9%. The new benchmark will be effective for affirmative action plans updated after March 31, 2019.
Jackson Lewis P.C. • March 26, 2019
Today, OFCCP issued its first Corporate Scheduling Announcement List (CSAL) of 2019, providing advance notification of compliance reviews, including CMCEs, Section 503 Focused Reviews and compliance checks. True to expectations, the Agency vastly increased the number of locations subject to review to more than 3,500.
Ogletree Deakins • March 26, 2019
On March 25, 2019, the Office of Federal Contract Compliance Programs (OFCCP) published a list of contractors and subcontractors identified for a potential compliance evaluation in Fiscal Year (FY) 2019 (which will end on September 30, 2019) on its Freedom of Information Act (FOIA) Library. The FY 2019 Corporate Scheduling Announcement Letter (CSAL) List is the first to be posted exclusively online, rather than sent through the United States mail.
Jackson Lewis P.C. • March 11, 2019
In August 2018, OFCCP released Directive 2018-04 announcing the Agency’s implementation of Section 503 Focused Reviews. Long a priority Director Craig Leen, the Agency is hopeful the reviews will improve compliance with the regulations and promulgate EEO for Individuals with Disabilities. OFCCP has indicated it will start scheduling the Section 503 Focused Reviews with the Agency’s upcoming round of CSALs.
Littler Mendelson, P.C. • March 10, 2019
Last summer, OFCCP put contractors on notice that it was preparing to implement focused reviews of contractors’ compliance with Executive Order 11246, Section 503 of the Rehabilitation Act of 1973, and the Vietnam Era Veterans’ Readjustment Act of 1974 (VEVRAA) when it issued Directive 2018-04.1 On March 8, 2019, the OFCCP issued its much-anticipated Frequently Asked Questions (FAQs) to address what contractors can expect during a Section 503 focused review.
Ogletree Deakins • March 10, 2019
On March 8, 2019, the Office of Federal Contract Compliance Programs (OFCCP) announced that it has published a landing page containing information about Section 503 focused reviews. OFCCP touts the new landing page as a resource for contractors to help them institute best practices with a goal of increasing the employment of individuals with disabilities. Among the resources on the landing page are “disability inclusion best practices, documents explaining what to expect during a Focused Review, and important OFCCP contact information.”
Jackson Lewis P.C. • February 24, 2019
OFCCP announced Friday that it will post a new Corporate Scheduling Announcement List (CSAL)(formerly known as Corporate Scheduling Announcement Letter or Courtesy Scheduling Announcement Letter) in “mid-to-late March.” As previously announced, OFCCP now makes the CSAL publically available and, for the first time, OFCCP will send no letters to federal contractors – thus the changed reference to Corporate Scheduling Announcement List instead of “letter”. Instead, the March 2019 CSAL will appear only in OFCCP’s FOIA Library.
Jackson Lewis P.C. • January 25, 2019
As part of OFCCP’s continuing efforts at transparency, the Agency in late-November 2018 issued a Directive stating it would develop “a dynamic and searchable publically available source of Help Desk questions and answers to assist contractors.” Moreover, the Directive announced OFCCP would issue Opinion Letters to provide guidance on specific topics, either in response to Help Desk inquiries or in response to direct requests for Opinion Letters.
Jackson Lewis P.C. • December 05, 2018
As we reported on Friday, November 30, OFCCP began it’s 2019 fiscal year by releasing a rash of new directives. On Monday, we looked at the rescission of Obama Administration’s Active Case Enforcement (ACE) directive. Yesterday, we reviewed OFCCP’s new guidance on Early Resolution Procedures. Today we review the third Directive – Directive 2019-03: Opinion Letters and Help Desk.
Littler Mendelson, P.C. • December 04, 2018
On November 30, 2018, the Office of Federal Contract Compliance Programs (OFCCP) issued three new directives that it describes as reinforcing OFCCP’s “commitment to fulfilling its enforcement mission with more accountability and efficiency, as well as [its] efforts to maximize the effectiveness of compliance assistance outreach to assist contractors in meeting their responsibilities.”1
Jackson Lewis P.C. • December 04, 2018
As we reported last Friday, OFCCP has kicked-off 2019 with a bang – issuing three directives in a single day.
Ogletree Deakins • December 03, 2018
On November 30, 2018, the Office of Federal Contract Compliance Programs (OFCCP) announced it was rolling out three directives to “reinforce OFCCP’s commitment to fulfilling its enforcement mission with more accountability and efficiency, as well as the Department’s efforts to maximize the effectiveness of compliance assistance outreach to assist contractors in meeting their responsibilities.”
Jackson Lewis P.C. • December 03, 2018
Last Friday, OFCCP kicked off the 2019 fiscal year with its first of three new Directives: “Directive 2019-01 – Compliance Review Procedures,” which rescinds the Obama Administration’s Active Case Enforcement (ACE) approach to audits – Directive 2011-01. The ACE Directive was itself a replacement of the Bush Administration’s Active Case Management Directive (ACM).
Jackson Lewis P.C. • November 06, 2018
As contractors start to see new scheduling letters arrive from OFCCP’s latest round of advance notification letters, OFCCP has new opportunities to demonstrate its commitment to transparency, through implementation of the Agency’s recently released Directive 2018-08: Transparency in OFCCP Compliance Activities.
Ogletree Deakins • October 26, 2018
On October 17, 2018, the Trump administration issued its Fall 2018 Unified Agenda of Regulatory and Deregulatory Actions, which reports on actions administrative agencies plan to issue within the next year. The Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has two planned updates identified in the agenda.
Jackson Lewis P.C. • October 22, 2018
Late last week, OFCCP published a notice in the federal register seeking public comment regarding its proposed Leadership in Equal Access and Diversity (“LEAD”) Award.
FordHarrison LLP • October 15, 2018
Executive Summary: Over the last two months, the Department of Labor’s (DOL) Office of Federal Contract and Compliance Programs (OFCCP) issued seven new directives under the OFCCP’s Acting Director and Deputy Director, Craig Leen. The following is a brief overview of the most important directives:
Jackson Lewis P.C. • October 05, 2018
Appearing in today’s federal register is OFCCP’s request for comment on the proposed structure and details of the agency’s new Excellence in Disability Inclusion Award. The award
Jackson Lewis P.C. • October 02, 2018
In continued commitment to restoring the Agency’s relationship with the contractor community, OFCCP recently announced it has entered into a three-year Memorandum of Understanding (“MOU”) with the National Industry Liaison Group (“NILG”) in order to foster collaboration between the federal contractor community and OFCCP.
Littler Mendelson, P.C. • September 25, 2018
On September 19, 2018, the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) issued a new directive, 2018-09, announcing a plan to implement an Ombud Service in the national office to resolve certain types of concerns contractors face.
Ogletree Deakins • September 23, 2018
The Office of Federal Contract Compliance Programs (OFCCP) issued two more directives on September 18, 2018, promising transparency and communication with contractors.
Jackson Lewis P.C. • September 23, 2018
Wondering whether your organization has been selected for an upcoming audit as part of OFCCP’s recent Corporate Scheduling Announcement Letter (CSAL) list supplement? Well, wonder no more. OFCCP has made publicly available its most recent CSAL supplement as well as the two previous CSAL lists (2017 and 2018).
Jackson Lewis P.C. • September 19, 2018
There is no rest for the weary at OFCCP. Continuing the steady flow of Directives and proposals as well as audits coming out of Washington D.C., the Agency has released two additional directives in furtherance of the Administration’s commitment to transparency and certainty.
Ogletree Deakins • September 18, 2018
On September 11, 2018, the Office of Federal Contract Compliance Programs (OFCCP) published a notice in the Federal Register and a draft of a revised directive to “establish policies and procedures for requesting and maintaining FAAP Agreements.” The revised directive and notice suggest that OFCCP is seeking to increase functional affirmative action program (FAAP) participation. In fact, OFCCP has stated that FAAPs may offer a solution for today’s workforce and “encourages all contractors who need to develop an affirmative action program (AAP) to consider using a FAAP.” But contractors may want to carefully consider whether a FAAP agreement with OFCCP is right for them.
Littler Mendelson, P.C. • September 17, 2018
Generally, federal contractors must develop a written affirmative action program for every physical location with 50 or more employees. Recognizing that the workforce is not always tied to an establishment, the Office of Federal Contract Compliance Programs (OFCCP) adopted regulations almost 20 years ago that permit contractors to adopt a Functional Affirmative Action Program (FAAP) based on functional operations instead of the establishments where employees are physically located. Contractors with clear functions or lines of business find that FAAPs make it easier to organize and analyze data, identify issues, establish clear lines of responsibility for implementing their affirmative action programs, and monitor progress towards goals. OFCCP recently issued a directive—which is open to public comment—revising its policies and procedures for requesting and maintaining FAAP agreements.
Ogletree Deakins • September 13, 2018
On September 11, 2018, the Office of Federal Contract Compliance Programs (OFCCP) announced that it has proposed changes regarding functional affirmative action programs (FAAPs). These changes would establish more relaxed policies and procedures for contractors requesting and maintaining FAAP agreements.
Jackson Lewis P.C. • September 13, 2018
Has your organization ever considered switching from “establishment” AAPs to functional affirmative action plans (“FAAPs”)? OFCCP wants contractors to consider moving to FAAPs and, in that spirit, is looking to make FAAPs more attractive by proposing new FAAP requirements that would lighten the burden for those who apply for, and those that already have, FAAP agreements with OFCCP. OFCCP last modified the FAAP requirements in 2016 but the program was significantly changed in 2013 to its current structure.
Jackson Lewis P.C. • September 12, 2018
OFCCP’s new Directive on how the OFCCP will review federal contractors’ compensation practices during a compliance evaluation stresses a commitment to transparency and outlines how the Agency it will review data, group employees for analytical purposes, perform statistical analyses, and communicate findings with federal contractors.
Ogletree Deakins • September 11, 2018
Any employer doing business with the federal government should be aware of the Office of Federal Contract Compliance Programs (OFCCP) and the various laws administered by this agency. In this podcast, Columbia shareholder Leigh Nason discusses OFCCP basics, including how a company can determine if it is a federal contractor and, if so, the three primary laws that apply.
Littler Mendelson, P.C. • September 10, 2018
On September 7, 2018, the Office of Federal Contract Compliance Programs (OFCCP) sent a second round of Corporate Scheduling Announcement Letters (CSALs) to 750 contractor establishments.1 The CSAL serves as OFCCP’s “heads up” letter to a contractor that its establishment is on the current compliance evaluation scheduling list.
Ogletree Deakins • September 10, 2018
On Friday September 7, 2018, the Office of Federal Contract Compliance Programs (OFCCP) mailed 750 corporate scheduling announcement letters (CSALs) to federal contractors and subcontractors. The agency mailed the letters to 445 companies and included 69 corporate management compliance evaluations. OFCCP did not include any universities in this round of CSALs “due to currently available compliance workload.”
Jackson Lewis P.C. • September 09, 2018
As we reported last week, OFCCP has released a supplemental list of contractors who have been selected for audit by the Agency. In addition to release information about the supplemental list of CSALs, OFCCP also published a new FAQ addressing requests for extensions and a supplement to its recently disclosed scheduling methodology.
Ogletree Deakins • September 03, 2018
On August 24, 2018, the U.S. Department of Labor’s (DOL) Office of Federal Contract Compliance Programs (OFCCP) issued three directives, including Directive 2018-07, Affirmative Action Program Verification Initiative, which aims at ensuring covered contractors are annually preparing and implementing updating written affirmative action programs (AAPs). This directive could have a wide-ranging impact on covered contractors, especially those that encounter challenges in preparing written AAPs annually.
Ogletree Deakins • August 30, 2018
In keeping with the theme of recognition that Acting Director Craig Leen shared earlier in August at the 2018 National Industry Liaison Group (NILG) conference, on August 24, 2018, the Office of Federal Contract Compliance Programs (OFCCP) issued Directive 2018-06, “Contractor Recognition Program.” This directive is an apparent nod to the contractor community, which has voiced a desire for the return of the OFCCP recognition awards that were rescinded during the Obama administration, and is an acknowledgment by the agency that positive recognition programs can encourage more comprehensive and proactive compliance efforts.
Ogletree Deakins • August 30, 2018
For the third time in the last 10 years, on August 24, 2018, the Office of Federal Contract Compliance Programs (OFCCP) revamped its guidance on compensation investigation and enforcement by issuing Directive 2018-05 and publishing frequently asked questions (FAQs) on the new directive. This internal agency directive, while not having the force of law that a court holding or regulation would have, does provide federal contractors with some information on how OFCCP may evaluate their compensation in OFCCP audits. This directive will apply to compliance evaluations scheduled on or after August 24, 2018, and may be used by OFCCP in earlier, open cases to the extent it doesn’t conflict with prior guidance or procedure.
Jackson Lewis P.C. • August 30, 2018
There’s been a lot of discussion in past days about OFCCP’s new Compensation Directive, which describes the Agency’s approach to investigating pay discrimination. We’ve spent some time digging into the details of the directive. We’ve previously shared our thoughts about the Directive’s commitment to transparency, and now, as promised, want to share our thoughts about the nuts and bolts of the Directive. In summary, while the Directive is certainly transparent and descriptive and contains clarifications, it is by no means the “windfall” for contractors as some may be reporting.
Littler Mendelson, P.C. • August 29, 2018
On August 24, 2018, the Office of Federal Contract Compliance Programs (OFCCP) rescinded Directive 3071 and its Obama-era procedures for reviewing contractor compensation systems and practices, and replaced it with a new directive under which OFCCP’s approach to compensation analysis is clarified and constrained.2 Although the new directive does not include a hoped-for safe harbor provision for contractors that undertake robust internal compensation audits and adjust compensation based on their findings, it does provide significant guidance to both OFCCP compliance officers and federal contractors about how compensation analysis will be approached and what contractors can expect.
Littler Mendelson, P.C. • August 29, 2018
On August 24, 2018, the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) issued three new directives, 2018-05, 2018-06, and 2018-07. While directive 2018-05 has received most of the attention because it focuses on reviewing a contractor’s compensation practices during a compliance evaluation, directives 2018-06 and 2018-07 should not go unnoticed.
Jackson Lewis P.C. • August 28, 2018
The third of the three Directives OFCCP issued last Friday, Directive 2018-06 “Contractor Recognition Program” announces a program by which OFCCP will recognize contractors with “high-quality and high-performing compliance programs and initiatives.” Recognition is one of the four themes Acting Director Leen has spoken about recently and such programs are not a new concept in the Agency – some of you may recall OFCCP’s previous EVE Award program. The Agency’s new Directive, however, describes a program having much more potential than a simple recognition program.
Fisher Phillips • August 27, 2018
The agency overseeing federal contractors issued a revised pay bias directive on Friday that somewhat loosens the standards by which it will evaluate employer compensation practices during compliance investigations. The Office of Federal Contractor Compliance (OFCCCP) released DIR 2018–05, also known as “Analysis of Contractor Compensation Practices During a Compliance Evaluation,” to replace a 2013 directive which had ratcheted up the heat on contractors and scrutinized their compensation practices to identify and root out pay bias.
Jackson Lewis P.C. • August 27, 2018
As we announced Friday, OFCCP has issued three new Directives in furtherance of its efforts to make the Agency more transparent and efficient. New Directive 2018-07 “Affirmative Action Program Verification Initiative,” is aimed at expanding OFCCP’s enforcement reach and was previewed by Acting Director Leen at last month’s ILG National Conference.
Ogletree Deakins • August 26, 2018
Just two weeks after the Office of Federal Contract Compliance Programs (OFCCP) released two directives under Acting Director Craig Leen, the agency released three more initiatives. On August 24, 2018, OFCCP announced three directives being rolled out as “part of the Department’s efforts to maximize the effectiveness of compliance assistance outreach.” The three initiatives establish (1) “new procedures for reviewing contractor compensation practices”; (2) “a program to verify that contractors are in compliance with federal affirmative action program (AAP) requirements”; and (3) “an initiative establishing a recognition program for contractors with high-quality and high-performing compliance programs and initiatives.”
Jackson Lewis P.C. • August 26, 2018
Late last week OFCCP released a new Directive detailing the Agency’s approach to investigating pay discrimination. Directive 2018-05 applies to all OFCCP reviews scheduled on or after August 24, 2018, and to open reviews to the extent “they do not conflict with OFCCP guidance or procedures existing prior to the effective date.”
FordHarrison LLP • August 24, 2018
Executive Summary: On August 3, 2018, the head of the U.S. Department of Labor’s (DOL) contractor enforcement office announced that the DOL intends to identify and audit contractors who fail to certify their affirmative action compliance to the government. The announcement was made by Craig Leen, Acting Director of the Office of Federal Contract Compliance Programs (OFCCP), during the National Industry Liaison Group conference in Anaheim, California.
Fisher Phillips • August 21, 2018
A focus on equal employment opportunity and the protection of religious freedom will become part of future reviews for federal supply and service contractors’ compliance with regulations under two policy directives issued by the Office of Federal Compliance Programs (OFCCP) on August 10. One directive adds to the agency’s enforcement activity reviews, focusing on federal contractors’ compliance with workforce antidiscrimination laws. The other requires OFCCP personnel to follow, in all their activities, recent court rulings and White House executive orders protecting the rights of organizations in the exercise of religion.
Littler Mendelson, P.C. • August 14, 2018
On August 10, 2018, the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) issued a new directive, 2018-04, announcing a plan to implement focused reviews of contractors’ compliance with Executive Order 11246, Section 503 of the Rehabilitation Act of 1973, and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA). This new directive comes a week after OFCCP’s Acting Director Craig Leen discussed such a plan at the Industry Liaison Group National Conference in Anaheim, California.
Littler Mendelson, P.C. • August 14, 2018
On August 10, 2018, Craig Leen, Acting Director of the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP), issued a new directive, 2018-03, instructing staff to take into account in their affirmative action and equal employment opportunity enforcement activities recent Supreme Court opinions and Trump administration executive orders addressing the freedoms and anti-discrimination protections that must be afforded religion-exercising organizations and individuals under the United States Constitution and federal law.
Ogletree Deakins • August 14, 2018
Hitting the ground running, Acting OFCCP Director Craig Leen released two new directives on August 10, 2018.
Jackson Lewis P.C. • August 12, 2018
In the Directive released late last week, OFCCP announced its plan to start scheduling focused reviews starting in Fiscal Year 2019. OFCCP’s fiscal year begins October 1.
Littler Mendelson, P.C. • August 08, 2018
In his first two speeches after taking over as Acting Director of the Office of Federal Contract Compliance Programs (OFCCP), Craig Leen emphasized a commitment to the rule of law, promised to provide contractors with clear guidance and transparent enforcement processes, offered incentives for voluntary compliance, and outlined plans to identify and audit government contractors that are ignoring their obligations. His speeches came at the beginning and end of a four-day Industry Liaison Group National Conference held last week in Anaheim, California that was attended by HR compliance professionals and officials from the Department of Labor (DOL), OFCCP, and Equal Employment Opportunity Commission (EEOC). Although the conference included presentations from industry experts, the highlight for many was the opportunity to hear directly from the OFCCP, including its new acting director.
Jackson Lewis P.C. • August 08, 2018
Even though it feels as thought we are still in the midst of summer, the time is here for annual VETS-4212 reporting. The portal is now open for the 2018 filing season which started on August 1, 2018 and ends on September 30, 2018.
Goldberg Segalla LLP • May 24, 2018
The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has issued Directive 2018-2, which extends the moratorium on its enforcement of affirmative obligations for subcontractors under TRICARE, the health care program of the United States Department of Defense that provides medical benefits to active duty and retired military personnel and their families.
FordHarrison LLP • May 23, 2018
Executive Summary: On May 18, 2018, the U.S. Department of Labor (DOL) issued a press release announcing an Office of Federal Contract Compliance Programs (OFCCP) Directive that extends by two years the enforcement moratorium pertaining to the affirmative obligations of TRICARE providers. TRICARE is a health care program through the U.S. Department of Defense (DOD) that pays health care benefits to active duty and retired military service members and their families. The moratorium, which had previously been in effect for four years and was set to expire this month, will now expire on May 7, 2021. The OFCCP also expanded coverage under the moratorium to apply to Veterans Affairs Health Benefits Program providers, in addition to TRICARE providers.
Littler Mendelson, P.C. • May 21, 2018
On May 18, 2018, the U.S. Office of Federal Contract Compliance Programs (OFCCP) issued a directive ending uncertainty as to whether efforts to audit TRICARE participants will resume in 2019 and signaling an encouraging willingness to reconsider the agency’s prior positions on this issue. Directive 2018-02 announces a two-year extension of the current moratorium on enforcement of federal contractor obligations based on TRICARE participation through May 7, 2021.
Ogletree Deakins • May 20, 2018
According to a May 18, 2018, press release, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has extended its moratorium on enforcing the affirmative action obligations of TRICARE providers (a health care program of the U.S. Department of Defense that pays for the medical benefits of active duty and retired military personnel and their families). According to a new OFCCP directive, the moratorium, which has been in effect since 2014, will now expire on May 7, 2021. In a footnote, Directive 2018–02 also amends the moratorium to include Veterans Affairs Health Benefits Program providers in addition to TRICARE subcontractors.
Ogletree Deakins • May 07, 2018
With any change in presidential administration, it is typical to see turnover of the highest-ranking personnel in a federal agency. Those transitions appear to be occurring rapidly at the Office of Federal Contract Compliance Programs (OFCCP), as several key OFCCP staffers have quietly left the agency or announced an imminent departure within the last month. Thomas M. Dowd, former deputy director, was quietly removed from the OFCCP website in April of 2018. Midwest Regional Director Bradley A. Anderson recently announced his departure from OFCCP for the Equal Employment Opportunity Commission. The latest change occurred in the Pacific Region, which has developed a reputation for its active posturing in compensation investigations—a reputation that may change with the apparent departure of Regional Director Janette Wipper, who was announced as chief counsel at the California Department of Fair Employment and Housing on May 1, 2018.
Jackson Lewis P.C. • March 26, 2018
In the new spending bill passed by Congress and approved by President Trump last week, OFCCP will receive essentially the amount of funding as it has in previous years. As signed by the President, the budget has $103,476,000 allocated to OFCCP, which is comparable to the $103,767,000 for FY2018, and significantly up from the $91 in the President’s proposed budget. The one sentence appropriation for OFCCP can be found on page 886 of the 2232 page bill.
Jackson Lewis P.C. • March 13, 2018
As the first quarter of 2018 nears its end, and we are adjusting to an extra hour of daylight (and an hour less sleep this weekend) we wanted to take a moment to remind you about the Paid Sick Leave obligations that went into effect in January 2017 for covered contractors. For a refresher of these obligations, check out the blog post my colleague Megan Holstein and I recently posted.
Jackson Lewis P.C. • March 12, 2018
As paid sick leave laws continue to pass across the nation, as recently seen in Austin, Texas, employers have focused on complying with the various state and local jurisdictions’ paid sick leave requirements . However, employers may forget, or might have to totally missed, that there is a federal paid sick leave law. Executive Order 13706, Paid Sick Leave for Workers on Federal Contracts (hereinafter called “Federal Contractor Paid Sick Leave Law”), requires that covered federal contractors provide paid sick and safe leave for qualified reasons to eligible employees. Eligible employees can use this time for their own health care, a family member’s health care, and certain needs related to domestic violence, sexual assault, stalking.
Jackson Lewis P.C. • March 09, 2018
As we’ve been discussing, now is the time for employers to be filing their annual EEO-1 reports. Coincidentally, and perhaps not un-intentionally, Public Citizen, a non profit advocacy group is also using this time to sue OFCCP around its practices of withholding information involving employers’ EEO-1 reports.
Ogletree Deakins • January 15, 2018
In order to close an Office of Federal Contract Compliance Programs (OFCCP) evaluation, a compliance officer (CO) must complete the Standard Compliance Evaluation Report (SCER) Form. The SCER is an internal OFCCP document that provides a road map for the compliance evaluation.
Ogletree Deakins • December 21, 2017
Every compliance evaluation that the Office of Federal Contract Compliance Programs (OFCCP) conducts begins with a scheduling letter. The letter notifies the contractor that it has been selected for an audit and identifies the contractor establishment to be audited. The letter is accompanied by an Itemized Listing of data to be submitted to OFCCP for review concerning the contractor’s affirmative action compliance. The scheduling letter was last renewed in July of 2016, and it will remain in effect until June 30, 2019.
Ogletree Deakins • December 13, 2017
The Office of Federal Contract Compliance Programs (OFCCP) does not require that employers create written job descriptions for positions within their companies; however, well-written job descriptions can play a vital role before and during an OFCCP compliance review.
Jackson Lewis P.C. • November 30, 2017
As of today, OFCCP remains without a new director. According to Bloomberg News, an industry news outlet, the Department of Labor has confirmed Craig Leen has begun work as a “senior advisor” within OFCCP. No additional information regarding his role was provided.
Ogletree Deakins • November 28, 2017
Under 41 C.F.R. §§ 60-217(c); 60-300.44(f); and 60-741.44(f), federal contractors must document outreach and recruitment efforts for qualified minorities, females, and individuals with disabilities, as well as protected veterans (if the contractor is subject to veteran regulations). In an effort to help contractors identify programs that assist in providing job referral services to women, minorities, veterans, and individuals with disabilities, the Office of Federal Contract Compliance Programs (OFCCP) maintains an Employment Referral Resource Directory.
Jackson Lewis P.C. • September 20, 2017
Effective January 1, 2018, the minimum wage for federal contractors working on or in connection with contracts covered by Executive Order 13658 will be $10.35/ hour. The announcement was made via posting in the federal register on September 15, 2017. The wage rate for tipped employees will also increase to $7.25/hour.
Fisher Phillips • September 15, 2017
The U.S. Labor Department has published the 2018 wage-rate floor required by Executive Order 13658, "Establishing A Minimum Wage for Contractors". Beginning on January 1, 2018, the minimum rate will increase by 15 cents per hour to $10.35 per hour.
Ogletree Deakins • September 14, 2017
On August 31, 2017, the U.S. Department of Labor (DOL) announced that the agency will support Hurricane Harvey and Irma relief efforts in a number of ways, including by relaxing federal contractors’ requirements on a temporary basis. As part of the initiative, the Office of Federal Contract Compliance Programs (OFCCP) will be temporarily suspending certain requirements on federal contractors to allow “businesses involved in hurricane relief the ability to prioritize recovery efforts.”
Jackson Lewis P.C. • September 12, 2017
In budget measures last week both the U.S. Senate and House signaled the proposed merger between OFCCP and EEOC will soon be nothing but a distant memory. This action comes on the heels of a recent letter from OFCCP Acting Director Tom Dowd who also questioned the efficiency of the proposed merger in light of available alternatives.
Ogletree Deakins • August 06, 2017
On July 24, 2017, the U.S. Department of Labor’s Veterans’ Employment and Training Service (VETS) sent a letter clarifying the data collection and reporting periods for the VETS-4212 and EEO-1 reports. The letter explains that contractors may use the same data collection period for the reports, but they must be filed during separate time periods.
Fisher Phillips • August 03, 2017
Higher education institutions felt seismic shockwaves yesterday as the New York Times reported that the Trump administration would soon redirect Justice Department resources toward investigating – and possibly suing – colleges and universities over their affirmative action admissions policies. Although the state of affirmative action policies has evolved over the past several decades, never before has such a stark and dramatic shift in the landscape been proposed. What do you need to know about this development? Here are answers to some of the most frequently asked questions about this news.
Nexsen Pruet • April 27, 2017
Executive Order (EO) 11246 prohibits federal contractors and subcontractors from discriminating against employees and applicants on the basis of race, color, religion, sex, sexual orientation, sexual identity, or national origin. To ensure that obligation is met, certain contractors are required, by EO 11246 and related laws, to prepare and maintain an Affirmative Action Plan (AAP). An AAP is a comprehensive, written self-auditing document that generally requires detailed and complex statistical analyses regarding the makeup of the contractor’s workforce and its efforts to proactively recruit, hire, train, and promote women, minorities, disabled individuals, and veterans to ensure that all such individuals have equal opportunities in employment.
FordHarrison LLP • April 06, 2017
Executive Summary: President Trump has signed a Joint Resolution (H.J. Res. 37) disapproving federal agency rules implementing the Fair Pay and Safe Workplaces Executive Order (EO 13673) (also known as the “Blacklisting” EO) signed by former President Obama in 2014. President Trump also issued an EO on March 27, 2017, revoking EO 13673. The revocation of the Fair Pay and Safe Workplaces EO and its implementing regulations means federal contractors will not be required to comply with the EO’s requirement to disclose violations of 14 different federal workplace laws and their state-law equivalents. Additionally, contractors will not be required to comply with the EO’s paycheck disclosure requirements nor will its prohibition on mandatory arbitration of certain Title VII or sexual assault or harassment claims take effect.
Jackson Lewis P.C. • April 03, 2017
OFCCP has released its revised VEVRAA hiring benchmark for 2017. The agency has lowered the benchmark to 6.7 percent, down from the previous 6.9 percent mark.
Littler Mendelson, P.C. • April 03, 2017
On March 31, 2017, the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) updated its Annual Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) Benchmark Database to reflect a new hiring benchmark of 6.7 percent. The new benchmark is slightly lower than the previous year’s benchmark of 6.9 percent.
FordHarrison LLP • March 29, 2017
Executive Summary: In January, the OFCCP filed an administrative complaint against Google for denying access to records in violation of applicable federal affirmative action laws and implementing regulations. The Administrative Law Judge (ALJ) denied OFCCP’s request to compel Google to comply with the request for additional information.
Fisher Phillips • March 28, 2017
Today, President Trump signed his approval to a joint resolution passed by Congress disapproving of Executive Order 13673, better known as the “Fair Pay and Safe Workplaces” executive order, and more commonly referred to as the “blacklisting” rules (a term which includes regulations and guidance issued in conjunction therewith). President Trump’s signature sets ablaze yet another piece of the Obama administration’s legacy, permanently blocking rules which would have required federal contractors to disclose violations of numerous workplace laws when bidding for work with the government.
Ogletree Deakins • March 28, 2017
It's official. On March 27, 2017, President Trump signed the Congressional Review Act (CRA) resolution (H.J. Res. 37) invalidating the regulations that implemented President Obama’s Fair Pay and Safe Workplaces Executive Order (EO 13673). Also known as the "contractor blacklisting” regulations, the rules were finalized towards the end of the Obama administration and would have required government contractors and subcontractors to report alleged, unproven violations of 14 federal labor and employment laws—“administrative merits determinations" such as NLRB complaints—for consideration by government contracting officers in awarding federal contracts, among other onerous requirements. At the same time as signing the CRA rescinding the implementing blacklisting regulations, President Trump revoked EO 13673.
Jackson Lewis P.C. • March 23, 2017
As an update to last month’s report that OFCCP has put 800 establishments on notice of upcoming audits, we have learned that as of Friday, March 17, 2017, OFCCP has started sending out letters actually initiating audits.
Nexsen Pruet • November 14, 2016
Employers who regularly contract with the federal government are, most likely, already well aware that doing so can be both difficult and complex. This is particularly the case this time of year, when many are undergoing compliance audits. So here’s a word of warning for those considering entering into contracts with the federal government or becoming federal subcontractors who provide goods or services for prime contractors:
Ogletree Deakins • November 04, 2016
On October 24, 2016, the U.S. District Court for the Eastern District of Texas entered a nationwide injunction preliminarily enjoining the Obama administration from implementing final rules to effectuate Executive Order 13673, Fair Pay and Safe Workplaces. The federal court’s decision came in the context of a lawsuit brought by trade associations challenging the final rules as an unauthorized and unconstitutional exercise of the President’s authority. The preliminary injunction came just hours before the final rules were scheduled to take effect and was seen as welcome news for regulation-weary federal contractors.
Carothers DiSante & Freudenberger LLP • October 27, 2016
Final rules implementing President Obama's Federal Contractor Paid Sick Leave Executive Order were recently issued, establishing new compliance burdens for many federal contractors. The final rule implementing Executive Order 13706 (establishing paid sick leave for federal contractors) was published on September 30, 2016 and begins applying to covered contracts with the federal government on January 1, 2017.
Carothers DiSante & Freudenberger LLP • October 27, 2016
On August 25, 2016, the Department of Labor published the Final Rule and related guidance implementing President Obama's Fair Pay and Safe Workplaces Executive Order. This has been dubbed the "blacklisting rule" because, among other things, it requires federal contractors and subcontractors to disclose various labor-related violations to the government in order to be considered for a contract and allows the government to use that information in determining whether or not to contract with a particular entity. The Final Rule was slated to take effect today (October 25, 2016). However, two industry groups recently filed suit in federal court in Texas (Associated Building Contractors of Southeast Texas, et al. v Anne Rung, et al.) seeking to block implementation and enforcement of the Final Rule on several well-taken grounds, including that the government exceeded its authority in issuing the new rules and that the rules are preempted by various federal laws. In a huge victory for the industry groups (and federal contractors covered by the new rules), yesterday the Texas court granted the industry groups’ motion for a nationwide preliminary injunction, immediately halting enforcement of key aspects of the Executive Order (“EO”) and Final Rule pending final resolution of the litigation. The ruling enjoins the portions of the Final Rule requiring contractors to disclose labor violations and prohibiting covered contractors from requiring employees to arbitrate Title VII claims or tort claims for sexual assault or harassment. The injunction does not block a third aspect of the Final Rule, the “paycheck transparency” portion, which requires covered contractors to provide employees with detailed wage statements. That requirement takes effect January 1, 2017.
Fisher Phillips • October 27, 2016
In a somewhat surprising development, a federal court in Texas blocked the government from implementing most of the federal contractor “blacklisting” rules that were slated to go into effect on October 25, 2016. The final rules and guidance implementing the Fair Pay and Safe Workplaces Executive Order, signed by President Obama in July 2014 and published in August 2016, would have required contractors to disclose violations of numerous workplace laws, such as Title VII and the FLSA, when bidding for work with the government. But by virtue of Judge Marcia Crone’s October 24 order, contractors can carry on and proceed without present concern about most of the blacklisting rules.
FordHarrison LLP • October 26, 2016
Executive Summary: On the day before the effective date of the Regulations and Guidance implementing the Fair Pay and Safe Workplaces Executive Order (collectively the “Rules”), a federal trial court in Texas has temporarily halted implementation of the “blacklisting” requirements and the prohibition of pre-dispute arbitration agreements for Title VII claims and torts based on sexual harassment or assault imposed on certain government contractors and subcontractors by the EO.
Jackson Lewis P.C. • October 25, 2016
A U.S. District Court Judge has ordered a nationwide preliminary injunction blocking the labor law violation disclosure requirements and restriction on use of arbitration agreements portions of the Fair Pay and Safe Workplaces Final Rule and Guidance (“Final Rule”), which were set to take effect on October 25, 2016.
Littler Mendelson, P.C. • October 25, 2016
Late in the day on Monday October 24, 2016, a U.S. District Court Judge for the Eastern District of Texas granted a preliminary injunction against implementation of major and contentious provisions of the Fair Pay and Safe Workplaces Executive Order (E.O.), also known as the "blacklisting" rule. The injunction, requested by the Associated Builders and Contractors of Southeast Texas, the Associated Builders and Contractors national organization, and the National Association of Security Companies,2 will temporarily block implementation and enforcement of the E.O.'s (1) disclosure and disqualification requirements and (2) prohibition on pre-dispute arbitration agreements.
Ogletree Deakins • October 25, 2016
On October 24, 2016, a Texas judge issued a preliminary injunction in a case challenging the so-called contractor blacklisting rules, which were scheduled to take effect today, October 25. The final regulations, which the U.S. Department of Labor issued two months ago to implement Executive Order No. 13673, Fair Pay and Safe Workplaces (EO 13673), would have required companies bidding on certain federal contracts to report past and pending determinations by courts, arbitrators, and federal enforcement agencies regarding violations of 14 federal labor laws, including two other executive orders. The final regulations created a scheme of “serious, willful, repeated, and pervasive” violations that would have threatened contractors’ eligibility for federal contracts, even if those “violations” consisted of no more than preliminary determinations made unilaterally by agency enforcement staff. Starting today, these requirements were set to apply to bids on solicitations valued at $50 million or more and, starting April 25, 2017, to solicitations valued at or above $500,000.
Jackson Lewis P.C. • October 25, 2016
In a much anticipated, last minute ruling, a U.S. District Court Judge has ordered a nationwide preliminary injunction blocking the labor law violation disclosure requirements and restriction on use of arbitration agreements portions of the Fair Pay and Safe Workplaces Final Rule and Guidance (“Final Rule”), which were set to take effect today.
Jackson Lewis P.C. • October 20, 2016
Several large construction and security industry groups have filed a lawsuit in the U.S. District Court for the Eastern District of Texas to block the heavily criticized Fair Pay and Safe Workplaces Executive Order 13673 and related rules. The court has scheduled a temporary restraining order (TRO) hearing for October 21, 2016, just four days before the Executive Order’s requirements begin to go into effect on October 25.
Jackson Lewis P.C. • October 19, 2016
We have learned that Patricia Shiu will end her tenure as OFCCP Director in just a few weeks, on November 6th. Director Shiu assumed the position in mid-2009 and has been one of the longest-serving directors of the agency.
Ogletree Deakins • October 13, 2016
The regulatory onslaught for federal contractors just won’t stop. The “contractor blacklisting” regulations implementing Executive Order 13673, Fair Pay and Safe Workplaces are set to take effect by the end of this month. On September 29, 2016, the U.S. Department of Labor (DOL) issued a final rule to implement Executive Order 13706, Establishing Paid Sick Leave for Federal Contractors, which means that contractors’ human resources and legal teams will have another set of regulations to parse and implement by the end of the year.
Littler Mendelson, P.C. • October 04, 2016
On September 29, 2016, the U.S. Department of Labor (DOL) issued its long-awaited final rule1 to implement Executive Order 13706,2 which requires covered federal contractors to provide employees with up to seven days (56 hours) of paid sick leave per year, including paid leave to care for family members and family-like individuals. Although the DOL made several minor revisions in its final rule, the substantive provisions of the rule—including accrual and use requirements—remain largely unchanged and will impose substantial new obligations on many employers beginning January 1, 2017.
FordHarrison LLP • October 03, 2016
Executive Summary: On September 29, 2016, the U.S. Department of Labor (DOL) acted on President Obama’s Executive Order 13706 (EO) and released a final rule implementing the requirements for federal contractors and subcontractors to provide employees with paid sick leave (Final Rule). Specifically, contractors must provide one hour of paid sick leave for every 30 hours worked on or in connection with a covered contract, for at least 56 hours per year, and subject to certain limitations. The requirements will take effect for covered contracts entered into on or after January 1, 2017.
Jackson Lewis P.C. • October 03, 2016
The U.S. Department of Labor has released final regulations implementing President Barack Obama’s Executive Order 13706, requiring up to seven days of paid sick leave for workers on federal contracts.
Fisher Phillips • October 03, 2016
The U.S. Department of Labor (USDOL) unveiled final regulations yesterday that will require federal contractors to provide up to 56 hours of paid sick leave to those employees performing work on or in connection with certain contracts issued on or after January 1, 2017. President Obama issued an Executive Order to mandate this requirement in September 2015, but the regulations themselves create a whole set of new specific responsibilities. Contractors will want to familiarize themselves with these rules as soon as possible.
Ogletree Deakins • September 29, 2016
On September 29, 2016, the U.S. Department of Labor (DOL) announced publication of the final rule implementing the paid sick leave executive order that applies to federal contractors. Executive Order (EO) 13706, Establishing Paid Sick Leave for Federal Contractors requires certain federal contractors to provide their employees up to seven days of paid sick leave per year.
Jackson Lewis P.C. • September 29, 2016
On the eve of the end of its fiscal year, the U.S. Department of Labor has released final rules for new EEO-1 Pay Data reporting obligations as well as paid sick leave regulations for federal contractors.
FordHarrison LLP • September 27, 2016
The Department of Labor (DOL) has announced that the minimum wage for employees performing work on certain federal contracts will increase to $10.20 per hour beginning January 1, 2017. Additionally, the minimum cash wage that generally must be paid to tipped employees of covered federal contractors will increase to $6.80 per hour effective January 1, 2017. This increase is in accordance with the requirements of Executive Order 13658, Establishing a Minimum Wage for Contractors, signed by President Obama on February 12, 2014.
Ogletree Deakins • September 23, 2016
On September 22, 2016, the U.S. Government Accountability Office (GAO) released a report evaluating the U.S. Department of Labor’s (DOL) Office of Federal Contract Compliance Programs (OFCCP). The report, entitled “Equal Employment Opportunity: Strengthening Oversight Could Improve Federal Contractor Nondiscrimination Compliance,” largely covers the weaknesses in OFCCP’s compliance evaluations, which, according to the report, have an impact on the effectiveness of its enforcement efforts. The report lays the blame on “OFCCP’s weak compliance evaluation selection process, reliance on voluntary compliance, and lack of staff training.”
Jackson Lewis P.C. • September 23, 2016
This week the General Accounting Office (GAO) issued a report to the House of Representatives Committee on Education and the Workforce on its recent audit of OFCCP. The report reviews (1) how the Agency conducts audits; and, (2) the Agency’s outreach assistance and guidance efforts.
Littler Mendelson, P.C. • September 21, 2016
On September 20, 2016, the U.S. Department of Labor published a notice of the minimum wage rate to be paid, beginning January 1, 2017, to workers performing on or in connection with federal contracts covered by Executive Order (E.O.) 13658, Establishing a Minimum Wage for Contractors. Beginning January 1, 2017, federal contractors must pay covered workers at least $10.20 per hour. The Secretary of Labor also gave notice that beginning January 1, 2017, covered tipped employees performing work on or in connection with covered contracts must be paid a cash wage of at least $6.80 per hour.
Jackson Lewis P.C. • August 04, 2016
Hello from the 2016 Industry Liaison Group National Conference in Charlotte, North Carolina!
FordHarrison LLP • July 06, 2016
Executive Summary: On June 23, 2016, the U.S. Supreme Court held for the second time that race may be taken into account when public universities and colleges admit students. In a 4-3 decision (Justice Kagan recused herself based on her prior work on the case as Solicitor General), the Court held that the University of Texas at Austin's (UT) admissions policy, which uses a variety of factors including race to increase the diversity of its student body, does not violate the Equal Protection Clause of the Constitution. Fisher v. University of Texas at Austin, Case No. 14-981.
Jackson Lewis P.C. • June 26, 2016
In a 4-3 decision on Thursday, June 23, 2016, the United States Supreme Court upheld the University of Texas’s (UT) race-conscious admissions program. The decision addressed only UT’s specific admissions policy in effect when Ms. Fisher was denied admission in 2008, but for the third time in four decades confirms that race-conscious affirmative action admissions programs are not categorically unconstitutional. Rather, as set out in a pair of 2003 decisions (Gratz v. Bollinger, 539 U.S. 306 and Grutter v. Bollinger, 539 U.S. 306), narrowly-tailored race-conscious admissions policies may, as in this case, survive a “strict scrutiny” review under the U.S. Constitution.
Littler Mendelson, P.C. • June 26, 2016
On June 23, 2016, the U.S. Supreme Court issued an opinion for the second time in Fisher v. University of Texas at Austin, (Fisher II), a case that directly questioned whether race can be considered at all in college admissions, and had the potential to call into doubt the legality of federal affirmative action requirements for government contractors as well as some employer diversity programs. In a 4-3 decision, the Court determined that the University of Texas’ race-conscious admissions program in use when the complainant applied to the school is lawful under the Equal Protection Clause. The decision is a positive development for proponents of affirmative action programs in both higher education and in employment.
Ogletree Deakins • June 24, 2016
On June 23, 2016, the Supreme Court of the United States ruled that the race-conscious admission program that a public university used for undergraduate admissions was lawful under the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution. In a 4–3 ruling, the Court held that the university’s program withstood strict scrutiny analysis. The three dissenting justices argued that the university failed to meet its burden to show that the admissions plan was narrowly tailored to serve compelling interests. Fisher v. University of Texas at Austin, No. 14–981, Supreme Court of the United States (June 23, 2016).
Fisher Phillips • June 24, 2016
Today the U.S. Supreme Court held by a four to three vote that the University of Texas’s use of racial preferences in undergraduate admissions did not violate the Equal Protection Clause of the Fourteenth Amendment, upholding the University’s affirmative action program. The issue of affirmative action in higher education has now been considered five times by the Supreme Court and has produced some of the Court’s most fractious decisions, today’s being no exception. Fisher v. University of Texas.
Jackson Lewis P.C. • June 24, 2016
Today in the case of Fisher v. University of Texas, the U.S. Supreme Court today held, in a 4-3 decision, that the “race-conscious admissions program in use at the time of petitioner’s application is lawful under the Equal Protection Clause.” This is the second time the Court has considered the issue but the first time it has issued a decisive decision.
Jackson Lewis P.C. • June 20, 2016
The Final Rule on Sex Discrimination from the Office of Federal Contract Compliance Programs recognizes the expanding interpretation of “because of sex” as a basis for discrimination, but does not impose on federal contractors new “equal pay” requirements, a new posting, new subcontract or purchase order updates, or a new tagline on job postings.
Jackson Lewis P.C. • December 18, 2015
While its been quite some time since we’ve discussed the issue, it seems we have occasion again to revisit the age-old, yet unresolved, question of whether healthcare providers are covered by federal affirmative action laws and regulations. The answer to that question has been an ongoing saga in Congress and the courts. The recent history of this topic can be found here and here.
Jackson Lewis P.C. • October 14, 2015
As part of its ongoing effort to provide employers with tools to educate and inform employees and non-employees about affirmative action obligations, OFCCP has released a new disability self-identification public service-like video entitled Disability Inclusion Starts With You.
FordHarrison LLP • September 30, 2015
Executive Summary: As part of its 50th Anniversary celebration, the OFCCP recently launched a website that lists, by contractor name, establishments that are in the process of developing a class member list as part of the settlement process with OFCCP. The agency has stated that the purpose of this website is to locate as many class members as possible by directing potential class members to contact the OFCCP. The Class Member Locator website can be found at www.dol.gov/OFCCP/CML.
FordHarrison LLP • September 21, 2015
Executive Summary: The Department of Labor (DOL) has announced that the minimum wage for certain federal contracts will increase to $10.15 per hour beginning January 1, 2016. Additionally, the minimum cash wage that generally must be paid to tipped employees of covered federal contractors will increase to $5.85 per hour effective January 1, 2016.
Jackson Lewis P.C. • September 18, 2015
Bills pending in both houses of Congress would make it unlawful for most federal contractors to request a job applicant, whether orally or in writing, to disclose criminal history record information before the applicant has received a conditional offer of employment.
Fisher Phillips • September 18, 2015
The U.S. Labor Department has published the 2016 wage-rate floor required by President Obama's "Establishing A Minimum Wage for Contractors" Executive Order 13658. The Order has been implemented through regulations appearing at 29 C.F.R. Part 10. Both the Order and 29 C.F.R. § 10.5 call for USDOL to conduct annual re-determinations of that minimum wage.
Jackson Lewis P.C. • September 18, 2015
On September 11, 2015, OFCCP published the Final Rule implementing Executive Order 13665 – Prohibitions Against Pay Secrecy Policies and Actions. The Final Rule will be effective for contracts or subcontracts over $10,000 entered into or modified after January 11, 2016.
FordHarrison LLP • September 14, 2015
Executive Summary: The Office of Federal Contract Compliance Programs (OFCCP) has published a final rule implementing President Obama's executive order prohibiting federal contractors from retaliating against employees for discussing or inquiring about their own compensation or that of other employees. The final rule takes effect January 11, 2016 for covered federal contractors.
Ogletree Deakins • September 11, 2015
On Labor Day, President Obama announced a new Executive Order that will require federal contractors to provide employees with paid sick leave. The new order, anticipated to apply to new federal contracts entered into on or after January 1, 2017, will require covered federal contractors and subcontractors to provide at least one hour of paid leave for every 30 hours worked and will enable employees to earn up to 7 days or more of paid sick leave annually. Employees may use the paid time off to take care of themselves or family members and also for absences related to domestic violence, sexual assault, and stalking.
FordHarrison LLP • September 09, 2015
Executive Summary: President Obama has signed an Executive Order requiring federal contractors and subcontractors to provide employees with one hour of paid sick leave for every 30 hours worked, for at least 56 hours per year. The requirement will take effect for covered contracts entered into after January 1, 2017.
Jackson Lewis P.C. • September 09, 2015
A new executive order signed by President Barack Obama on September 7, 2015, requires federal contractors and subcontractors to give their workers the ability to earn up to seven days (56 hours) of paid sick leave each year. Workers will earn an hour of paid leave for every 30 hours of work and can use this leave to care for themselves or family members. Workers can carry over unused leave from year to year and unused leave will be reinstated for employees rehired by a covered contractor within 12 months after a job separation. Payment for unused leave upon job separation is not required under the executive order.
Fisher Phillips • September 09, 2015
President Obama used Labor Day 2015 to send a strong signal about his domestic priorities, signing an Executive Order which will require federal contractors and subcontractors to provide their workers up to seven or more days of paid sick leave per year. Employers have some time to come into compliance, as the rule only applies to contracts that are solicited or awarded starting on January 1, 2017.
Jackson Lewis P.C. • September 09, 2015
To follow up on our report last month, President Obama has signed an Executive Order requiring federal contractors to give their workers the ability to earn up to seven days (56 hours) of paid sick leave each year. The executive order will go into effect on January 1, 2017 and instructs the U.S. Secretary of Labor to issue regulations to implement the executive order by September 30, 2016.
Littler Mendelson, P.C. • September 08, 2015
The latest in a string of presidential actions targeting employers that do business with the federal government is a new Executive Order (EO) that will require federal contractors to provide their employers with paid sick leave. Signed on Labor Day 2015 and effective in 2017, the EO will permit employees working on federal contracts to earn at least one hour of paid sick leave for every 30 hours worked. According to a White House fact sheet, the paid leave mandate will affect approximately 300,000 workers. The White House also announced that the Department of Labor (DOL) will issue a final rule this week to implement Executive Order 13665, which adds pay transparency requirements to existing federal contractor obligations. Specifically, this EO, signed into law on April 8, 2014, adds new prohibitions on discrimination based on the inquiry, discussion, or disclosure of pay.
FordHarrison LLP • August 07, 2015
The next big change for federal contractors may be a requirement that they provide paid sick leave to employees. According to the New York Times, President Obama has drafted an executive order that would require federal contractors and subcontractors to provide a minimum of 56 hours of paid sick leave (approximately seven days) per year to employees. The leave could be used for the employee's own illness, to care for a spouse, child or family member who is ill or for absences from work to seek medical attention, attend counseling, obtain relocation assistance or attend legal proceedings related to sexual violence or stalking.
FordHarrison LLP • August 21, 2014
Executive Summary: The Office of Federal Contract Compliance Programs (OFCCP) has published a Directive on Gender Identity and Sex Discrimination (DIR 2014-02). The Directive clarifies that agency guidance on discrimination on the basis of sex under Executive Order 11246 includes gender identity and transgender status. The Directive is available on the OFCCP web site at: http://www.dol.gov/ofccp/regs/compliance/directives/dir2014_02.html.
FordHarrison LLP • April 28, 2014
The U.S. Supreme Court has upheld an amendment to the Michigan constitution that prohibits the use of race-based preferences as part of the admissions process for all state universities. See Schuette v. Coalition to Defend Affirmative Action (BAMN), 2014 U.S. LEXIS 2932 (U.S. Apr. 22, 2014).
Franczek Radelet P.C • April 23, 2014
The U.S. Supreme Court held yesterday that a voter-approved ban on the use of race-based preferences for public university admissions does not violate the U.S. Constitution. The decision focused narrowly on whether the U.S. Constitution prohibited the voters of Michigan from making a university admissions decision typically made at the university board level—the decision to consider race in admissions. The Court found no constitutional prohibition. The Court’s decision did not disturb the Court’s prior rulings that institutions of higher education and K-12 schools may maintain admissions and student assignment policies that consider race under certain conditions.
Fisher Phillips • April 23, 2014
n a highly anticipated decision, the Supreme Court upheld Michigan’s Proposal 2, which amended the Michigan Constitution to prohibit racial preferences in admissions to public schools and government programs.
Ogletree Deakins • April 23, 2014
On April 22, 2014, the Supreme Court of the United States held that although consideration of race in admissions is constitutionally permissible, voters have every right to reject it. The case, Schuette v. Coalition to Defend Affirmative Action, began as an opportunity to reconsider race-conscious admissions at Michigan’s public colleges and universities. It ended as a celebration of the First Amendment, the democratic process, and states’ rights.
Ogletree Deakins • March 25, 2014
On March 21, 2014, in Associated Builders & Contractors, Inc. v. Shiu, the U.S. District Court for the District of Columbia reached a seminal decision in a case challenging a final rule promulgated by the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP). The rule, which is scheduled to go into effect on March 24, 2014, implements new regulations under section 593 of the Rehabilitation Act, which requires that government contractors “take affirmative action to employ and advance in employment qualified individuals with disabilities.”
FordHarrison LLP • November 25, 2013
Executive Summary: A construction trade association has sued the director of the OFCCP and the Secretary of Labor, seeking to exclude government contractors in the construction industry from the data collection and utilization review analysis requirements of the OFCCP's new rule amending the requirements for government contractors under § 503 of the Rehabilitation Act. The lawsuit, filed by the Associated Builders and Contractors, Inc. (ABC), claims the OFCCP's new rule "imposes unprecedented, wasteful and burdensome data collection and utilization analysis requirements on government construction contractors, without statutory authority and in an arbitrary and capricious manner."
Fisher Phillips • June 25, 2013
On June 24, 2013, the U.S. Supreme Court vacated a decision by the U.S. Court of Appeals for the 5th Circuit that upheld a race-conscious student admissions process used by the University of Texas. The decision clarifies earlier Supreme Court decisions holding that, although suspect, race may be considered in the admissions process if the process meets strict scrutiny requirements. Fisher v. University of Texas.
FordHarrison LLP • April 16, 2013
Executive Summary: The Office of Federal Contract Compliance Programs (OFCCP) has issued an announcement both reassuring covered contractors that seeking compliance assistance will not trigger a compliance review but also noting that seeking such compliance assistance will not shield the company from a review scheduled in accordance with OFCCP's selection guidelines.
Ogletree Deakins • April 16, 2013
After a relatively quiet 2012, the Office of Federal Contract Compliance Programs (OFCCP) hit the ground running in 2013. In a second major announcement in the new year, OFCCP issued new investigation standards and procedures on February 28 as well as a new policy directive for reviewing the compensation systems and practices of federal contractors and subcontractors.
Ogletree Deakins • May 25, 2012
The Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) is soliciting public input on its proposal to implement standard procedures for supply and service (S&S) contractors seeking approval to develop affirmative action programs based on functional or business units, commonly known as functional affirmative action programs (FAAPs). According to the agency, FAAPs “are designed to provide contractors with the option of creating [affirmative action programs] that better fit their business needs.” Contractors must get prior written approval before developing and implementing a FAAP.
Ogletree Deakins • January 10, 2012
On December 9, 2011, the U.S. Department of Laborâ€™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 â€œdisabilityâ€ 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.
Ogletree Deakins • February 08, 2011
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.
Ogletree Deakins • August 03, 2010
OFCCP Announces Intent to Update Disability Affirmative Action Regulations.
Fisher Phillips • May 12, 2009
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.
Jones Walker • January 28, 2008
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.