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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OFCCP Proposes Changes To Scheduling Letter and Itemized Listing

On November 21, 2022, OFCCP published notice in the Federal Register that it is seeking reauthorization of a revised Compliance Review Scheduling Letter (“Scheduling Letter”) and Itemized Listing.  These documents are issued at the outset of an OFCCP audit, requesting multiple categories of documents from the contractor selected for audit. OFCCP’s proposed revisions to the … Continue Reading

OFCCP Hosts Webinar Discussing Changes to FAAP Directive

On November 17, 2022, OFCCP hosted a webinar discussing the changes it made to Directive 2013-01 earlier this year through Revision 3 (the “Directive”). The Directive sets forth the agency’s policies and procedures for federal contractors implementing and maintaining FAAPs. As many contractors know, FAAPs provide an alternative for federal supply and service contractors to … Continue Reading

OFCCP Adopts Updated “Know Your Rights” Poster for Contractors

As our colleagues previously reported, on October 19, 2022, the EEOC updated its “Know Your Rights” poster for employers.  On October 28, 2022, the Office of Federal Contractor Compliance Programs (“OFCCP”) notified contractors that they must post the new EEOC poster, replacing the 2009 “EEO is the Law” poster and the 2015 “EEO is the … Continue Reading

Task Force and OMB Issue New Guidance on Federal Contractor Vaccine Mandate

As federal contractors are aware, on December 7, 2021, a federal judge issued a nationwide preliminary injunction halting enforcement of the federal contractor and subcontractor vaccine mandate requirements 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. … Continue Reading

OFCCP Extends Deadline For Contractors To Object To Release of EEO-1s

As previously reported, OFCCP has received a FOIA request seeking federal contractors’ and subcontractors’ EEO-1 reports from 2006-2020.  On August 19, 2022, OFCCP published a notice informing contractors and subcontractors of that fact and giving them until September 19, 2022 to submit any written objections to releasing their reports. On September 15, 2022, OFCCP extended … Continue Reading

OFCCP Warns Contractors That Have Not Certified AAP Compliance To Do So By September 1, 2022

Earlier this year, OFCCP launched its “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.” Contractors were required to certify whether they had developed such AAPs by June … Continue Reading

OFCCP Launches Construction Contract Award Portal

OFCCP has launched its new online portal: the Notification of Construction Contract Award Portal (NCAP). NCAP is expected to modernize how OFCCP receives required notices about construction contract and subcontract awards by eliminating the need to submit contract award information by mail or email. According to the notice, “NCAP provides contracting officers, contractors, and applicants … Continue Reading

OFCCP Revises Its Pay Equity Directive

As we previously reported, in March of this year, OFCCP issued its first directive of the Biden Administration – Directive 2022-01 (the “Directive”) – which addressed the issue of contractors’ obligations to conduct analyses of their compensation systems, as well as the agency’s expectations regarding providing those analyses when under audit.  The Directive received a … Continue Reading

OFCCP Informs Contractors of Broad FOIA Request For EEO-1 Reports and Provides Opportunity to Object

OFCCP published a notice on August 19, 2022, notifying federal contractors of a request by the Center for Investigative Reporting made pursuant to the Freedom of Information Act (“FOIA”) requesting the disclosure of federal contractors’ EEO-1 Reports.  Specifically, the request seeks all Type 2 Consolidated Employer Information Reports, Standard Form 100 (EEO-1 Report), filed between … Continue Reading

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
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