Articles Discussing the OFCCP (Office of Federal Contract Compliance Programs)

A federal trial court in Texas has entered an agreed order granting a joint motion for voluntary dismissal filed by the parties in Frito-Lay v. Department of Labor. As discussed in our prior Alert, in Frito-Lay, the company challenged a decision by the Arbitration Review Board (ARB) upholding the authority of the Office of Federal Contract Compliance Programs (OFCCP) to extend the temporal scope of a desk audit beyond that of the scheduling letter. The order granting the motion for voluntary dismissal states that the administrative proceedings before the DOL and ARB are vacated with prejudice to their re-institution, “including the Final Administrative Order of the Administrative Review Board” issued on May 8, 2012, and the Recommended Decision and Order of the ALJ issued on July 23, 2010.

Executive Summary: The Office of Federal Contract Compliance Programs (OFCCP) has issued a Directive officially establishing its five-year moratorium on enforcement of the affirmative action obligations of TRICARE subcontractors. The Directive states that within 30 business days of the effective date of the Directive (May 7, 2014), the OFCCP will administratively close any open compliance evaluations of TRICARE subcontractors affected by the moratorium. It also provides additional information regarding the moratorium and the agency’s proposed outreach efforts during that time period. Additionally, the Directive provides guidance to TRICARE subcontractors covered by the moratorium who receive an OFCCP Scheduling Letter or Corporate Scheduling Announcement Letter (CSAL).

Executive Summary: The Office of Federal Contract Compliance Programs (OFCCP) has announced that the Annual National Percentage of Veterans in the Civilian Labor Force for the current year is 7.2 percent. The final regulations implementing the OFCCP’s revised VEVRAA Rules had indicated that this amount would be 8 percent; however, the information posted on the OFCCP’s VEVRAA Benchmark Database is the current information and should be used for affirmative action plans filed after the effective date of the new regulations (March 24, 2014).

On March 28, 2014, the OFCCP withdrew its jurisdictional Complaint against Florida Hospital of Orlando after several years of litigation. OFCCP alleged it had jurisdiction to conduct an audit because the Hospital participated in the TRICARE program; the Hospital challenged the Agency’s jurisdiction. Due to the withdrawn Complaint, the Department of Labor’s ALJ dismissed the case on April 1.

Executive Summary: Labor Secretary Perez has announced a five-year moratorium on enforcement “of the affirmative action obligations of all TRICARE providers,” and has stated that the Office of Federal Contract Compliance Programs (OFCCP) will administratively close any open and scheduled compliance evaluations for TRICARE subcontractors. Despite this announcement, however, the OFCCP continues to claim jurisdiction over certain healthcare providers that participate in TRICARE as well as the Federal Employees Health Benefits Program (FEHB).

During a hearing conducted by the House Subcommittee on Workforce Protections, Littler’s David Goldstein testified about the Office of Federal Contract Compliance Programs’ (OFCCP) persistent attempts to assert jurisdiction over many healthcare providers based on TRICARE participation. TRICARE is the Department of Defense (DoD) program that pays for the medical benefits of active duty and retired military personnel and their families. The federal contractors that administer the TRICARE program enter into contracts with hospitals and other medical providers to provide medical care and supplies to military personnel and their family members covered by TRICARE.

The Office of Federal Contract Compliance Programs (OFCCP) likely will be sending out advanced courtesy notifications (formerly known as Corporate Scheduling Announcement Letters or CSALs), to establishments that have been selected to undergo a compliance evaluation during the upcoming scheduling cycle. This letter does not schedule a compliance evaluation, but instead notifies a facility that it will probably undergo a compliance evaluation during the next scheduling cycle.

The Office of Management and Budget (OMB) has approved the form that federal contractors, including healthcare providers the Office of Federal Contract Compliance Programs (OFCCP) considers contractors based on their TRICARE participation, will be required to use to solicit information from applicants and employees regarding their status as an individual with a disability. Contractors must use this form exactly as published by OFCCP.

On January 22, 2014, the Office of Management and Budget (OMB) approved the OFCCP’s disability status form, which will be used by federal contractors. Revised regulations under the Rehabilitation Act will require federal contractors to invite applicants and employees to voluntarily identify themselves as disabled; the invitation must be extended using this specific form. Employers may use this form in an electronically fillable format provided that the electronic version displays the OMB number and expiration date, contains the exact text of the OMB approved form, uses a sans-serif font, and uses at least an 11-pitch font size.

The Office of Federal Contract Compliance Programs (OFCCP) has released the revised self-identification form that government contractors are expected to use to comply with the new affirmative action regulations issued on September 24, 2013 for individuals with disabilities. The new regulations, effective March 24, 2014, require contractors to solicit disability information from applicants at the pre-offer stage, and from new hires at the post-offer stage. Within the first year of the regulations’ effective date and at least every five years thereafter, contractors are also required to ask their employees to self-identify their disability status. The Voluntary Self-Identification of Disability survey can be accessed here.

The House Subcommittee on Workforce Protections held a hearing on Wednesday to discuss recent Office of Federal Contract Compliance Programs (OFCCP) rules and other initiatives affecting federal contractors, subcontractors, and healthcare providers. Notably, the OFCCP recently issued its final revised affirmative action rules for protected veterans and individuals with disabilities. Among other requirements, these rules set hiring benchmarks for veterans, and a 7% utilization goal for employment of qualified individuals with disabilities for each of the job groups established in the contractor’s women and minorities’ affirmative action plans.

Executive Summary: The OFCCP has released its semiannual regulatory agenda, in which the agency discusses the issues it plans to address in 2014. According to the agenda, the OFCCP will be issuing proposed rules on pay data collection, revised sex discrimination guidelines, and updated affirmative action requirements for federal construction contractors.

Executive Summary: The Office of Federal Contract Compliance Programs (OFCCP) has announced final rules revising its Vietnam Era Veterans Readjustment Assistance Act (VEVRAA) and Rehabilitation Act regulations. The rules will take effect 180 days after publication in the Federal Register.

The DOL’s Office of Federal Contract Compliance Programs (OFCCP) has released an updated version of its Federal Contract Compliance Manual (FCCM). Spanning more than 500 pages and eight chapters, the FCCM provides a general framework for how federal contractor compliance evaluations and complaint investigations are conducted.

After briefly posting notices of the Corporate Scheduling Announcement Letters (CSAL) on its website on July 18, the Office of Federal Contract Compliance Programs (OFCCP) has now removed the posting. As noted in our July 19 Legal Alert, the OFCCP indicated that the release of the CSAL was accidental, and it has not yet implemented its policy of posting CSAL letters online. To review a spreadsheet of the companies that were identified on the OFCCP’s list, please click here. We will continue to monitor this situation for any further developments.