Government Contractor Compliance & Regulatory Update
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Guy Brenner

Partner

Guy Brenner is a partner in the Labor & Employment Law Department and leads the Firm’s Washington, D.C. Labor & Employment practice. He is head of the Government Contractor Compliance Group and is co-head of the Non-Compete & Trade Secrets Group. He has extensive experience representing employers in both single-plaintiff and class action matters, as well as in arbitration proceedings. He also regularly assists federal government contractors with the many special employment-related compliance challenges they face.

Guy represents employers in all aspects of employment and labor litigation and counseling, with an emphasis on non-compete and trade secrets issues, medical and disability leave matters, employee/independent contractor classification issues, and the investigation and litigation of whistleblower claims. He assists employers in negotiating and drafting executive agreements and employee mobility agreements, including non-competition, non-solicit and non-disclosure agreements, and also conducts and supervises internal investigations. He also regularly advises clients on pay equity matters, including privileged pay equity analyses.

Guy advises federal government contractors and subcontractors all aspects of Office of Federal Contract Compliance Programs (OFCCP) regulations and requirements, including preparing affirmative action plans, responding to desk audits, and managing on-site audits.

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Attention Contractors: The AAP Certification Deadline is Almost Here

As previously reported, the OFCCP has established a Contractor Portal where federal government contractors can register and certify they have developed and maintained affirmative action programs at each of their establishments or functional units.  Those who do not register and certify are more likely to be selected for audit. The deadline to register and submit … Continue Reading

OFCCP Announces Option to Bulk Upload for Large Federal Contractors

As previously reported, OFCCP recently launched its Contractor Portal, which requires certain federal government contractors to register and certify their compliance with the requirement to develop and maintain Affirmative Action Programs (“AAPs”). OFCCP has now introduced a “Bulk Upload/Modification” option on the Portal for federal contractors with 100 or more establishments or functional/business units. The … Continue Reading

OFCCP Announces Companies Selected for Audits – Was Your Company Selected?

On May 20, 2022, OFCCP announced it posted its first Corporate Scheduling Announcement List (CSAL) of FY22. The list consists of 400 locations selected for a Compliance Review (Establishment Review), Corporate Management Compliance Evaluation, or Functional Affirmative Action Program Review. Note that the list merely notifies these contractors that they will be audited – audits … Continue Reading

Upcoming Webinar: What Do OFCCP’s Recent Directives and Rulemakings Mean For Contractors?

Readers of this blog are well-aware that the OFCCP has signaled a new aggressive shift in its enforcement efforts through new Directives and regulatory initiatives. On Wednesday, May 18, 2022, we will host a CLE webinar reviewing these recent significant developments, what they mean for federal contractors and what federal contractors can expect from OFCCP … Continue Reading

OFCCP Releases 2022 VEVRAA Hiring Benchmark

The Office of Federal Contract Compliance Programs (“OFCCP”) has released its 2022 Vietnam Era Veterans’ Readjustment Assistance Act (“VEVRAA”) benchmark.  Effective March 31, 2022, the new benchmark is 5.5%, a slight decrease from 2021’s 5.6% benchmark.  This is OFCCP’s seventh reduction of the benchmark, which has steadily declined since its inception in 2014. The VEVRAA Benchmark is … Continue Reading

OFCCP’s Contractor Portal Is Now Open for AAP Certification

As previously reported, federal government contractors must certify their compliance with the requirement to develop and maintain Affirmative Action Programs (“AAPs”). The certification must be submitted through the newly created Contractor Portal, which opened for registration on February 1, 2022 and is now open to receive certification submissions. On March 31, 2022, OFCCP held a … Continue Reading

Contractors, Get Ready. New OFCCP Directive Signals A New Unfriendly Enforcement Era

On March 31, 2022, OFCCP issued Directive 2022-02 titled “Effective Compliance Evaluations and Enforcement” (the “Directive”).  The Directive’s stated purpose is to “provide transparency on OFCCP’s compliance evaluation policies and expectations for contractors.”  However, the Directive guts former-Director Craig Leen’s efforts to ensure OFCCP provided contractors with transparency, fairness, and consistency in audits and in … Continue Reading

OFCCP to Hold Webinar on AAP Certification

As previously reported, OFCCP has developed a Contractor Portal through which contractors are to certify compliance with their obligation to develop and maintain Affirmative Action Programs (“AAPs”).  Contractors may begin submitting certifications through the Contractor Portal on March 31, 2022, and certifications must be submitted by June 30, 2022. The Contractor Portal went live on … Continue Reading

OFCCP Proposes Significant Rule Amendments to Increase its “Flexibility” and Loosen Standards For Discrimination Findings

On December 10, 2020, OFCCP published its “Nondiscrimination Obligations of Federal Contractors and Subcontractors: Procedures To Resolve Potential Employment Discrimination” (the “Rule”).  The Rule was welcomed by the contractor community, as it established important procedural and substantive requirements before OFCCP can issue discrimination findings.  Among other things, the Rule sets forth clear parameters for what … Continue Reading

President Biden Issues Executive Order Promoting New Pay Equity and Transparency Requirements On Federal Contractors

On March 15, 2022, President Biden issued his Executive Order on Advancing Economy, Efficiency, and Effectiveness in Federal Contracting by Promoting Pay Equity and Transparency (the “Order”). Among other things, the Order requires the Federal Acquisition Regulatory Council (“FAR Council”) to “consider issuing proposed rules … enhancing pay equity and transparency for job applicants and … Continue Reading

OFCCP Will Start Demanding Contractors’ Internal Pay Equity Audits

On March 15, 2022, the OFCCP issued its first directive since President Biden took office.  Directive 2022-01 (the “Directive”) addresses contractors’ obligations to analyze their compensation systems and to turn over such analyses when under audit. The Directive begins by highlighting contractors’ obligations under 41 C.F.R. § 2.17(b).  That regulation provides that contractors “must perform … Continue Reading

U.S. Department of Agriculture Proposes Rule Requiring Contractors to Certify Labor Law Compliance

The U.S. Department of Agriculture (“USDA”) recently published a proposed rule that would require all federal contractors to certify compliance with 16 applicable labor laws. The certification requires an affirmative statement attesting compliance and further requires contractors to “promptly report[] to the contracting officer if and when adjudicated evidence of noncompliance occurs.” Under the rule, … Continue Reading

Contractors Are Now On The Clock: OFCCP’s Contractor Portal Is Open

As we previously reported, the OFCCP received approval and has launched a “Contractor Portal” which will be used to, among other things, have non-construction contractors annually certify compliance with their affirmative action program (“AAP”) obligations.  On February 1, 2022, the Contractor Portal went live.  In a bulletin issued on the same day, the OFCCP “strongly … Continue Reading

Federal Government Confirms It Is Currently Not Enforcing Contractor COVID-19 Requirements

Following up on two recent federal court decisions (discussed here and here) enjoining the enforcement of the contractor vaccine mandate, the Office of Management and Budget (“OMB”) has issued guidance, posted on the Safer Federal Workforce Task Force’s (“Task Force”) website, regarding the federal government’s response to those decisions. The guidance provides that “The Government … Continue Reading

Contractor Vaccine Mandate Blocked Nationwide

UPDATE (2/4/22): On February 2, the Eleventh Circuit scheduled oral argument for April 8. UPDATE (1/27/22): On January 21, 2022, Judge Baker issued an order in response to the federal government’s request for clarification of his order enjoining the federal contractor vaccine mandate nationwide.  Judge Baker’s latest order addressed two inquiries.  First, he declined to … Continue Reading

OFCCP Launches Contractor Portal Initiating AAP Verification Program

On December 2, 2021, OFCCP announced the launch of its new “Contractor Portal,” which “[c]overed federal contractors and subcontractors (“contractors”) must use … to certify, on an annual basis, whether they have developed and maintained an affirmative action program for each establishment and/or functional unit, as applicable.”  The Contractor Portal will also serve as a … Continue Reading

Vaccination Deadline for Contractors Extended to January 18, 2022

Federal government contractors and subcontractors have been dealing with a steady stream of new FAQs and details regarding the COVID-19 safety requirements for federal contractors and subcontractors first announced by President Biden’s Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors, and then issued by the Safer Federal Workforce Task Force (the “Task … Continue Reading

OFCCP Publishes Proposal to Rescind Religious Exemption Rule

As a follow up to yesterday’s announcement, OFCCP published its proposal to rescind the “Implementing Legal Requirements Regarding the Equal Employment Opportunity Clause’s Religious Exemption” rule (the “Religious Exemption Rule”) today. The Religious Exemption Rule expanded the existing exemption on religious entities’ compliance with the anti-discrimination provisions of Executive Order 11246. OFCCP contends that the … Continue Reading

OFCCP Announces Proposal to Rescind Religious Exemption Rule

The Office of Federal Contract Compliance Programs (“OFCCP”) announced today a proposal to rescind the rule titled “Implementing Legal Requirements Regarding the Equal Opportunity Clause’s Religious Exemption,” which has been in effect since January 8, 2021 (the “Religious Exemption Rule”).  The Religious Exemption Rule clarified the scope and application of the religious exemption contained in … Continue Reading

Contractor Vaccine Mandate Deadline Will Be Extended to January 4, 2022

Today, the Biden Administration issued a Fact Sheet related to the new OSHA emergency temporary standard (“ETS”) requiring vaccination or masking for employers with more than 100 employees and the new Centers for Medicare and Medicaid Services requirement that health care workers at facilities participating in Medicare and Medicaid are fully vaccinated (the “CMS rule”).  … Continue Reading

Task Force Signals Flexibility On Contractor Vaccination Mandate In New FAQs

Federal government contractors and subcontractors have been scrambling for weeks to try to digest and implement the COVID-19 safety measures issued by the Safer Federal Workforce Task Force (the “Task Force”) in the wake of the Biden Administration’s Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors.  Our prior analysis of the Task … Continue Reading

Task Force Issues Additional FAQs on Vaccinations for Contractors

The Safer Federal Workforce Task Force (the “Task Force”) has released additional frequently asked questions and answers (“FAQs”) regarding its Guidance for Federal Contractors and Subcontractors on implementing COVID-19 safety measures in accordance with Executive Order 14042. Our prior posts on the Guidance and previously-issued FAQs can be found here and here. A summary of … Continue Reading

FAR Council Issues Contractor Vaccination Contract Clause and Guidance

As previously reported, the Biden Administration issued Executive Order 14042 (“the Order”) last month.  The Order requires, in part, that the Federal Acquisition Regulatory Council (“the FAR Council”) amend the Federal Acquisition Regulation (“FAR”) to include a clause specifying that contractors and subcontractors shall “comply with all guidance for contractor or subcontractor workplace locations published … Continue Reading

Additional Contractor Vaccination Mandate Guidance Issued

The Safer Federal Workforce Task Force has released a set of frequently asked questions and answers (“FAQs”) regarding the Guidance for Federal Contractors and Subcontractors (the “Guidance”) it issued last week.  Our comprehensive summary of the Guidance is available here. The new FAQs largely repackage the information provided in the Guidance.  However, they do provide … Continue Reading
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