Government Contractor Compliance & Regulatory Update

Federal Contractor Vaccine Mandate Will End on May 12

By Guy Brenner and Olympia Karageorgiou on Posted in Coronavirus, Federal Contractors, OFCCP

On May 1, the Biden Administration announced that the federal contractor and subcontractor (“Contractor”) vaccine mandate (the “Contractor Vaccine Requirement”) issued by the Safer Federal Workforce Task Force (the “Task Force”) in response to President Biden’s Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors will officially end on May 12, 2023.

As we previously reported, the Contractor Vaccine Requirement, issued in September 2021, required Contractors to (1) impose vaccination requirements on certain employees, (2) comply with masking and physical distancing requirements, and (3) designate person(s) to coordinate COVID-19 workplace safety efforts. However, in December 2021, a federal judge issued a nationwide preliminary injunction halting enforcement of the Contractor Vaccine Requirement. As a result of the injunction, the Office of Management and Budget issued guidance stating that the federal government would not enforce the Contractor Vaccine Requirement, “absent further written notice from the agency[.]”

Following an Eleventh Circuit ruling narrowing the nationwide injunction, the Safer Federal Workforce Taskforce announced that it “intend[ed] to update its guidance regarding COVID-19 safety protocols for covered contractor and subcontractor workplace locations” and temporarily directed agencies not to enforce the Contractor Vaccine Requirement “to allow time to develop advice and processes for meeting agencies’ obligations under Executive Order 14042.” No updated guidance was issued.

The May 1, 2023 announcement instructs agencies “not [to] take any steps to require covered contractors and subcontractors to come into compliance with previously issued [Task Force] guidance, or enforce any contract clauses implementing Executive Order 14042.” The Task Force plans to “issue further guidance” after President Biden issues a new executive order “[i]n the coming days,” which will formally rescind the vaccination requirement effective May 12, 2023.

We will continue to monitor and report on this and other developments impacting federal government contractors.

 

OFCCP Revised Voluntary Self-Identification of Disability Form Approved

By Guy Brenner and Olympia Karageorgiou on Posted in Disability, OFCCP, Office of Management and Budget (OMB)

On April 25, 2023, the Office of Management and Budget (OMB) approved OFCCP’s revised Voluntary Self-Identification of Disability Form (CC-305). OFCCP states the form was revised in order to “update the preferred language for disabilities and to include additional examples of disabilities.”

For example, the prior version of the form asked individuals to indicate if they “have a history/record of having a disability,” while the revised form now asks if respondents “have had [a disability] in the past” (emphasis added).  Additionally, the revised form places bold font on the previously italicized disclaimer, “Disabilities include, but are not limited to[.]” Further, the revised form replaces the term “psychiatric condition” with “mental health condition” and adds, among others, neurodivergence, substance use disorder, and traumatic brain injury to the listed examples of disabilities.

Federal contractors and subcontractors (“Contractors”) must invite all employees and job applicants to complete the Voluntary Self-Identification of Disability Form, and s must begin using the updated Form CC-305 by no later than July 25, 2023.

 

OFCCP Publishes Non-Objecting Contractors’ EEO-1 Data And Provides Details Of Its Review Of Pending Objections

By Guy Brenner and Olympia Karageorgiou on Posted in EEOC, Federal Contractors, OFCCP

On April 17, 2023, after giving federal contractors and subcontractors (“Contractors”) several opportunities to submit objections, OFCCP published EEO-1 data for Contractors that “either affirmatively agreed to, or did not object to, the release of their EEO-1 data.”  As we previously reported, OFCCP had received a Freedom of Information Act (“FOIA”) request from the Center for Investigative Reporting for federal Contractors’ Type 2 EEO-1 Report data from 2016-2020.  OFCCP decided to publish the information it produced to the Center for Investigative Reporting in response to the request on its website.

As noted above, thus far OFCCP has only produced and published data from Contractors who did not object to the release of their data.  OFCCP will not publish EEO-1 data for objecting Contractors until it has completed evaluating those objections. OFCCP is “unable to give specifics as to when contractors will receive a response to their objection” but the agency will provide written notice and a “specified disclosure date” to contractors whose data will be published pursuant to the FOIA request on a rolling basis, through September 2023. Contractors that objected to disclosure on the basis that they were not a federal contractor “will be given an additional opportunity to object to the release of their entities’ data” if they are determined to have been a federal contractor during the relevant period.

After OFCCP completes its consideration of all contractor objections by late-September 2023, the agency will publish a supplemental disclosure of EEO-1 data for contractors determined to not have a valid exemption, as well as provide the Center for Investigative Reporting with a list of contractors whose EEO-1 data was exempted from disclosure.

OFCCP Proposes Revised Scheduling Letter and Itemized Listing

By Guy Brenner and Olympia Karageorgiou on Posted in Federal Contractors, OFCCP

As we previously reported, OFCCP is seeking reauthorization of a revised Compliance Review Scheduling Letter (“Scheduling Letter”) and Itemized Listing. The Scheduling Letter and Itemized are issued by OFCCP at the outset of an audit and request multiple categories of documents from federal contractors selected for audit. A detailed discussion of the originally proposed changes are available here.

After giving the public an opportunity to comment on the proposed changes, on April 17, 2023, the Office of Management and Budget (OMB) published a revised version of the proposed Scheduling Letter and Itemized Listing.

OFCCP’s only substantive proposed revision to the Scheduling Letter is to allow contractors to submit their responses through the Contractor Portal, in addition to the existing email, electronic submission, and physical mail options.

For the Itemized Listing, substantive proposed changes to the OFCCP’s original revisions include:

  • Item 7. OFCCP’s initial proposal instructed contractors to provide a “list” “identifying all action-oriented programs designed to correct any problem areas,” the modified item would require contractors to provide “all documentation demonstrating the development and execution of action-oriented programs designed to correct any problem areas identified pursuant to 41 CFR § 60-2.17(b).”
  • Item 18 (formerly proposed Item 20). Under the new proposed Itemized Listing, contractors would no longer be required to identify if each promotion is competitive or non-competitive, but may choose to do so. The revised proposal also removes the requirement to “include the previous supervisor, current supervisor, previous compensation, current compensation, department, job group, and job title from which and to which the person(s) was promoted.” Additionally, the updated proposal would no longer require contractors to provide a breakdown of employee terminations by reason for termination.

The public has until May 17, 2023, to submit comments on the proposed changes.

 

 

OFCCP Releases 2023 VEVRAA Hiring Benchmark

By Guy Brenner and Olympia Karageorgiou on Posted in Affirmative Action, OFCCP, Veterans

The Office of Federal Contract Compliance Programs (“OFCCP”) has released its 2023 Vietnam Era Veterans’ Readjustment Assistance Act (“VEVRAA”) benchmark.  Effective March 31, 2023, the new benchmark is 5.4%, a slight decrease from 2022’s 5.5% benchmark.  This is OFCCP’s eighth reduction of the benchmark, which has steadily declined since its inception in 2014.

The VEVRAA Benchmark is the figure which federal contractors must use to assess the effectiveness of their outreach programs for the hiring of veterans.  Contractors may either use OFCCP’s national benchmark or establish their own benchmark using applicable statistics and other metrics set forth in OFCCP’s regulations (41 CFR § 60-300.45(b)(2)).

Deputy Director Michele Hodge Will Become Acting Director of OFCCP

By Guy Brenner and Olympia Karageorgiou on Posted in EEOC, Federal Contractors, OFCCP

On March 30, 2023, outgoing OFCCP Director Jenny R. Yang confirmed what we had reported here – she will be leaving the agency. Effective April 3, 2023, Director Yang will begin serving as Deputy Assistant to the President for Racial Justice and Equity.  In her farewell announcement to “OFCCP Stakeholders” she shared that Deputy Director Michele Hodge will serve as Acting Director of OFCCP.

According to Deputy Director Hodge’s biography, she is presently responsible for implementing OFCCP’s “operational and enforcement goals, manag[ing] OFCCP’s budget, and oversee[ing] all human capital decision making.” Deputy Director Hodge has served in several roles at OFCCP, including as Mid-Atlantic Regional Director, Deputy Regional Director for the Northeast and Mid-Atlantic Regions, and District Director and Compliance Officer in the New Jersey District Office.

OFCCP Director Jenny Yang Reported to Be Leaving Agency

By Guy Brenner and Olympia Karageorgiou on Posted in Department of Labor, EEOC, OFCCP

According to reports, OFCCP Director Jenny R. Yang is expected to leave her position this week. Director Yang became OFCCP Director on January 20, 2021.  At this time, it is not known who will replace her.

During her term, Director Yang has overseen several OFCCP developments, including:

  • Directive 2022-01, which addresses contractors’ obligations to produce information related to their compensation analyses during OFCCP audits. In the face of criticism that the Directive required production of materials protected by attorney-client privilege, the directive was subsequently revised in August 2022.
  • Proposing amendments to the agency’s Procedures To Resolve Potential Employment Discrimination, removing several contractor-friendly provisions from the procedures.
  • Directive 2022-02, titled “Effective Compliance Evaluations and Enforcement,” the stated intent of which is to “provide transparency on OFCCP’s compliance evaluation policies and expectations for contractors.” In enacting this directive, OFCCP reversed prior agency guidance and established that: (1) contractors are no longer guaranteed advance notice of audits; (2) contractors can no longer expect a 30-day extension for providing items requested in a scheduling letter; (3) contractors can expect more requests for additional data during audits; and (4) contractors can expect OFCCP’s audits to include more requests for witness information and more witness interviews.
  • Launching the Contractor Portal for federal contractors and subcontractors to annually certify compliance with the requirement to develop and maintain “an affirmative action program (AAP) for each establishment and/or functional unit.”
  • Proposing significant changes to the Compliance Review Scheduling Letter and Itemized Listing.
  • Rescinding a Trump-era regulation that expanded the exemption on religious entities’ compliance with the anti-discrimination provisions of Executive Order 11246.

We will continue to monitor and report on leadership changes within OFCCP.

OFCCP’s Religious Exemption Rule Rescission to Take Effect March 31, 2023

By Guy Brenner and Olympia Karageorgiou on Posted in Discrimination, Federal Contractors, OFCCP

OFCCP has completed the process of rescinding its Final Rule, “Implementing Legal Requirements Regarding the Equal Opportunity Clause’s Religious Exemption” (the “Religious Exemption Rule”), which came into effect on January 8, 2021.

As we previously reported, the Religious Exemption Rule – adopted during the Trump Administration – expanded the existing exemption to religious entities’ compliance with the anti-discrimination provisions of Executive Order 11246 by adding new definitions to “clarify the scope” of EO 11246’s religious exemption. In November 2021, OFCCP proposed to rescind the Religious Exemption Rule, taking the position that the Religious Exemption Rule “departed from and questioned longstanding Title VII precedents,” and “could have the effects of diminishing the economy and efficiency of work performed on Federal contracts and weakening nondiscrimination protections for workers.”

As a result of the Religious Exemption Rule’s rescission, OFCCP states it plans to “return to the department’s prior policy and practice in place during the presidencies of George W. Bush and Barack Obama – of interpreting and applying the religious exemption in Executive Order 11246 consistent with Title VII principles and case law.”  OFCCP acknowledges there is a lack of uniformity in the approaches used by courts in religious exemption cases, but contends relevant Title VII factors are clearly identified and should be weighed on a case-by-case basis.

The rescission will take effect on March 31, 2023.

OFCCP Announces Contractor Portal Will Open For AAP Certification On March 31, 2023

By Guy Brenner and Olympia Karageorgiou on Posted in Affirmative Action, Affirmative Action Plan (AAP), Federal Contractors

Updated on March 27, 2023 to include webinar details.

On March 20, 2023, OFCCP announced its Contractor Portal will open to receive Affirmative Action Program (“AAP”) certification submissions on March 31, 2023.  Certifications must be made by June 29, 2023.

OFCCP launched the Contractor Portal last year and required federal contractors and subcontractors to certify whether they have developed and maintained their required AAPs.  As OFCCP reminds the contracting community in its announcement, “[e]xisting contractors that have not certified by June 29, 2023, will be more likely to appear on OFCCP’s scheduling list than those that have certified their compliance with AAP requirements.”

One change announced by OFCCP for this year is that the “certification feature has been enhanced and contractors must now provide the start date of their AAP Coverage Period when certifying.”

OFCCP’s announcement also provides that new contractors have “120 days to develop their AAP(s) and must register and certify compliance through the Contractor Portal within 90 days of developing their AAP(s).”  The Portal will remain open after June 29, 2023 to accommodate new contractors’ certifications.

OFCCP posted a pre-recorded webinar to its Contractor Portal landing page explaining “how contractors can enter their establishment and/or functional/business unit’s AAP start date and certify compliance through the Contractor Portal.”

OFCCP advises contractors that have questions about the Contractor Portal to contact OFCCPAppsSupport@dol.gov or call the OFCCP Help Desk at 1-800-397-6251.

OFCCP (Again) Updates List of Contractors Whose EEO-1 Data Will Be Released

By Guy Brenner and Olympia Karageorgiou on Posted in Affirmative Action, Federal Contractors, OFCCP

As we previously reported, OFCCP has received a Freedom of Information Act (“FOIA”) request seeking federal contractors’ and subcontractors’ (collectively, “Contractors”) EEO-1 reports from 2016-2020. After publishing a list of Contractors whose EEO-1 data would be released, OFCCP offered Contractors an opportunity to notify the agency if they were erroneously included on the list or otherwise should be removed by February 7, 2023 (which was then extended to February 17, 2023).  On February 16, 2023, OFCCP published an updated list of Contractors whose data is subject to release and allowed them to notify OFCCP if they object to the release of their EEO-1 data by March 3, 2023.

On March 10, 2023, OFCCP published a second updated list of non-objecting Contractors whose EEO-1 data from 2016-2020 is subject to release. The updated list removes contractors and subcontractors who objected to the release of their EEO-1 data on or before March 3, 2023. OFCCP has “not yet made any determinations regarding the substance or merit of these entities’ responses or objections,” but “at this time has removed these entities from the initial disclosure” pending OFCCP’s determination on the submitted objections.

Those Contractors that believe they have been erroneously included on the new updated list, have until March 17, 2023 to notify OFCCP.  Following the close of this final response period, OFCCP will publish Contractor EEO-1 data for non-objecting Contractors on its Employment Information Reports webpage.

Contractors that believe they have been improperly listed as not objecting to the release of their EEO-1 data must submit their notice, along with all supporting information (including the contractor’s EEO-1 unit number(s)) to OFCCP-FOIA-EEO1-Questions@dol.gov by March 17, 2023. Contractors may consult OFCCP’s Submitter Notice Response Portal for additional information and can contact the FOIA Help Desk at 1-800-397-6251 with questions not covered by the Portal.

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