Articles Discussing General Topics in Affirmative Action

Executive Summary: EEOC and OFCCP have issued a new workplace poster, and the end of the year is quickly approaching. Now is the time for federal contractors to start planning for 2023 compliance with OFCCP obligations including affirmative action plan (AAP) development, annual compliance certification, and annual EEO and affirmative action training. Additionally, Contractors should stay on top of regulatory developments. 

Over decades, hundreds of colleges and universities have worked to increase the racial diversity of their student bodies for a host of reasons ranging from eliminating past discriminatory practices to ensuring their students were exposed to people with diverse life experiences and outlooks to prepare them to succeed in an increasingly diverse marketplace.

Beginning December 20, 2021, federal contractors must comply with the federal Fair Chance Act (FCA), which prohibits contractors from inquiring about a job applicant’s criminal background in certain cases in the initial stages of the application process, even as regulatory revisions on the “ban-the-box” law have yet to be released.

Under certain conditions, a purported subcontractor of a general contractor (or higher tier subcontractor) may be found to be a “labor broker” — a supplier of workers — rather than a true subcontractor.

While general or prime contractors have always faced the risk of liability for the actions or inactions of their subcontractors, an increase risk of state statutory liability for certain actions and inactions of subcontractors may be on the horizon.

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.

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.

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.

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.

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”).

The Office of Federal Contract Compliance Programs (OFCCP) has announced that it will not request, accept, or use “Component 2” compensation data submitted on the EEO-1 form. This statement comes just over two months after the Equal Employment Opportunity Commission (EEOC) announced it would not seek approval from the Office of Management and Budget (OMB) to collect compensation data on its Form EEO-1 next year. In its Notice slated for publication in the November 25, 2019 edition of the Federal Register, the OFCCP claims “it does not expect to find significant utility in the data given limited resources and its aggregated nature,” although the agency will continue to accept Component 1 data.

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).

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.

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.”