Executive Summary. The Office of Federal Contract Compliance Programs (OFCCP) has released its final rule implementing Executive Order 13672, signed by President Obama on July 21, 2014, which prohibits federal contractors from discriminating against individuals on the basis of sexual orientation or gender identity. The final rule is scheduled to be published in the Federal Register on December 5, 2014, but the pre-publication version is available for public inspection on the Federal Register Daily Journal page here. The OFCCP has published a list of Frequently Asked Questions regarding the rule, which are available at http://www.dol.gov/ofccp/LGBT/LGBT_FAQs.html. The rule will be effective 120 days from its publication in the Federal Register and will apply to federal contracts entered into or modified after the effective date.
Articles Discussing the OFCCP (Office of Federal Contract Compliance Programs)
DOL Announces Final Rule Implementing Executive Order Prohibiting LGBT Discrimination in Government Contracting
The Department of Labor will soon issue a final rule implementing Executive Order 13672, signed on July 21, 2014, which prohibits employment discrimination against federal employees and contractors on the basis of sexual orientation and gender identity. The executive order amends Executive Order 11246, which prohibits federal contractors and subcontractors from engaging in discrimination against their employees, by incorporating the phrase: “sex, sexual orientation, gender identity” into various portions of E.O. 11246 where other protected categories are listed.
OFCCP Announces Issuance of 2,500 Courtesy Scheduling Announcement Letters
Executive Summary: The Office of Federal Contract Compliance Programs (OFCCP) has announced that it will mail Courtesy Scheduling Announcement Letters (CSALs) to contractor facilities across the country that have been selected for compliance reviews during the next scheduling cycle.
OFCCP Issues New Scheduling Letter and Itemized Listing
On October 1, 2014, the Office of Federal Contract Compliance Programs (OFCCP) released its new compliance evaluation scheduling letter and accompanying Itemized Listing, which the OFCCP will begin using to schedule new audits on October 16, 2014 after a self-imposed two-week scheduling moratorium.
OFCCP Issues New Scheduling Letter and Itemized Listing β Federal Contractors Must Act Quickly to Ensure Compliance
Executive Summary: On September 30, 2014, the Office of Federal Contract Compliance Programs (“OFCCP”) published a Notice in the Federal Register announcing a newly approved Scheduling Letter and Itemized Listing. The Itemized Listing, used in conjunction with the Scheduling Letter, identifies the documents and information that contractors must provide at the onset of the desk audit phase of an OFCCP compliance evaluation for non-construction supply or service federal contractors.
OFCCP Releases NPRM on Pay Transparency Requirements
Executive Summary: It has long been a professional faux pas to ask someone how much money they make, and some employers prohibit their employees from talking about it. Well, if you are a federal contractor or subcontractor, be prepared to set aside your professional sensibilities, because things are about to change. On April 8, 2014, President Obama issued Executive Order 13665 to address the apparent lack of transparency in employers’ pay policies and practices. To address this issue, Executive Order 13665 amended Executive Order 11246 to include a provision prohibiting covered entities from discharging or discriminating against employees or applicants for inquiring about, discussing, or disclosing their compensation or the compensation of another employee or applicant. In plain terms, Executive Order 13665 would prohibit covered entities from maintaining what are sometimes referred to as “pay secrecy” policies.
President Obama Signs Executive Order Requiring Prospective Federal Contractors to Disclose Labor Violations
President Obama recently signed an Executive Order mandating that companies seeking federal contracts must disclose all labor law violations from the previous three years in order to be eligible for such contracts. The Fair Pay and Safe Workplaces Executive Order will govern new federal procurement contracts valued at more than $500,000 and provide information on companiesβ compliance with federal labor laws for agencies. The Executive Order is expected to be implemented on new contracts in stages, on a prioritized basis, during 2016.
OFCCP Will Require Contractors to File Equal Pay Report
Executive Summary: Implementing the President’s April 2014 Memorandum directing the Department of Labor to develop a data collection tool to advance the goal of pay equity, the Office of Federal Contract Compliance Programs (OFCCP) has published a Notice of Proposed Rulemaking (NPRM) requiring certain federal contractors and subcontractors to submit an annual Equal Pay Report on employee compensation. The NPRM was published in the August 8, 2014 Federal Register. More information is available on the OFCCP’s website at: http://www.dol.gov/ofccp/EPR.html.
OFCCP Issues Proposal to Implement New Contractor Compensation Reporting Requirement
On April 8, 2014, President Obama issued a Presidential Memorandum β Advancing Pay Equality Through Compensation Data Collection β directing the Department of Labor to issue regulations within 120 days that will require federal contractors and subcontractors to submit to the DOL summary data on the compensation paid their employees, including data by sex and race. The DOL, through the Office of Federal Contract Compliance Programs (OFCCP), will officially publish a proposed rule implementing this directive on August 8, 2014.
New “Fair Pay and Safe Workplaces” Executive Order Dramatically Increases Risks for Government Contractors
The White House has issued another Executive Order (EO) aimed at federal contractors, and it is the most sweeping order to date. The EO, titled “Fair Pay and Safe Workplaces,” was issued July 31, 2014 and is intended β according to the accompanying White House Fact Sheet β to “crack[] down on federal contractors who put workers’ safety and hard-earned pay at risk.” The EO imposes multiple new obligations on government contractors and greatly increases the risks that such contractors will confront in performing services for the government. In a number of its provisions, the EO is unprecedented in its scope and may very well exceed the President’s authority under the laws enacted by Congress.
OFCCP Argument for Expansive Scope of Desk Audit May be Weakened
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.
OFCCP Issues Directive on TRICARE Moratorium
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).
OFCCP Announces National Percentage of Veterans in Civilian Labor Force is 7.2 Percent
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).
Legal Alert: TRICARE Complaint Dismissed Against Florida Hospital
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.
Legal Alert: OFCCP Moratorium Offers Only Temporary Relief for Health Care Providers
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).