Government Contractor Compliance & Regulatory Update

OFCCP Updates List of Contractors Subject to Release of EEO-1 Data

As we previously reported here and here, OFCCP plans to release EEO-1 data for non-objecting contractors and subcontractors in response to a Freedom of Information Act (“FOIA”) request seeking contractors’ and subcontractors’ EEO-1 reports from 2016-2020. After publishing a list of contractors and subcontractors’ whose EEO-1 data would be produced, 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 and subcontractors whose data is subject to release.

The updated list both (1) “removes all contractors that objected prior to publication of the initial List”; and (2) “removes all entities that responded to [OFCCP] between February 2 and February 10, 2023, asserting either that they were not a federal contractor or otherwise objecting to their inclusion on the List and the disclosure of their data.” OFCCP will exclude contractors and subcontractors who submitted objections during this period from its initial FOIA disclosure, but OFCCP “has not yet made any determinations regarding the substance or merit of these entities’ responses or objections.”

Contractors and subcontractors on the updated list that object to the release of their EEO-1 data may notify OFCCP by March 3, 2023. After the response period concludes on March 3, 2023, “OFCCP will publish a second updated list by March 10, 2023, which will remove contractors that submitted objections after February 10, 2023 and by March 3, 2023, while OFCCP evaluates these objections.” After the second updated list is published, contractors and subcontractors will then have “one final opportunity to contact OFCCP no later than March 17, 2023” if they believe they have been improperly listed as not objecting to the disclosure of their EEO-1 data.

Contractor and subcontractor objections to the disclosure of EEO-1 data, along with all supporting information, must be submitted to OFCCP-FOIA-EEO1-Questions@dol.gov by March 3, 2023 at 11:59 pm EST. Submissions must include: “(1) all addresses associated with your entity for the reporting years in which your entity is listed; (2) your entity’s EEO-1 unit number; (3) any other entities associated with your organization (including, e.g., merged companies and subsidiaries) that you intend to cover in your objection, with any additional entity information needed to confirm the objection[.]” Contractors and subcontractors that submit objections are not limited in the reasons they may provide for objecting to disclosure; however if their reasons are not because they (i) previously submitted an objection to the disclosure of their EEO-1 data, (ii) were not a federal contractor during the relevant period, or (iii) are an entity associated with a contractor that did file a prior objection, contractors and subcontractors “must include an explanation as to why the contractor did not object in response to previous notices that OFCCP has issued, and why there is good cause for OFCCP to accept the objection at this point.”

OFCCP has a Submitter Notice Response Portal containing additional information and advises contractors that they may contact its FOIA Help Desk at 1-800-397-6251 with questions not covered by the Portal.

OFCCP (Yet Again) Extends Deadline and Issues Additional Guidance for Contractors Objecting to Release of EEO-1 Data

By Guy Brenner and Olympia Karageorgiou on February 15, 2023 Posted in EEOC, Federal Contractors, OFCCP

As we previously reported, OFCCP has received a Freedom of Information Act (“FOIA”) request seeking contractors’ and subcontractors’ EEO-1 reports from 2016-2020.

OFCCP originally provided contractors and subcontractors until September 19, 2022 to submit objections as to why their data should not be produced. That deadline was then extended to October 19, 2022.

On February 2, 2023, OFCCP published a list of contractors and subcontractors whose data was set to be released. OFCCP originally provided contractors and subcontractors identified on this list until February 7, 2023 to submit objections as to why their data should not be produced. OFCCP specified two limited bases on which contractors and subcontractors could contend they should be removed from the list. That deadline was then extended to February 17, 2023, and OFCCP provided contractors and subcontractors an additional basis for advocating removal.

On February 14, 2023, OFCCP provided contractors and subcontractors on the disclosure list with a Valentine’s Day gift. OFCCP announced that by February 17, 2023, OFCCP will publish an updated list of non-objecting contractors and subcontractors whose data is subject to disclosure. The updated list will remove all contractors “that OFCCP has identified as incorrectly included on the February 2, 2023 list, including contractor responses submitted by February 10, 2023” as well as “all contractors that submitted objections after the publication of the February 2, 2023 list until February 10, 2023, while OFCCP evaluates these objections.”

In addition, OFCCP is providing contractors and subcontractors remaining on the updated list until March 3, 2023 to object to the production of their EEO-1 data. Any contractors and subcontractors submitting objections are not limited in what reasons they may provide for objecting to disclosure; however if their reasons are not because they (i) previously submitted an objection to the disclosure of their EEO-1 data, (ii) were not a federal contractor during the relevant period, or (iii) are an entity associated with a contractor that did file a prior objection, they must include in their objection “an explanation as to why [they] did not object in response to previous notices that [OFCCP] ha[s] issued and why there is good cause for [OFCCP] to accept the objection at this point.”

After the response period ends on March 3, 2023, “OFCCP will publish a second updated list by March 10, 2023, which will remove contractors that submitted objections after February 10, 2023 and by March 3, 2023, while OFCCP evaluates these objections.” Following the publication of the second updated list, contractors will then have “one final opportunity to contact OFCCP no later than March 17, 2023” if they believe they have been improperly listed as not objecting to the disclosure of their EEO-1 data.

Any objections to disclosure, along with all supporting information (including the contractor’s EEO-1 unit number(s)), must be submitted to OFCCP-FOIA-EEO1-Questions@dol.gov by March 3, 2023 at 11:59 pm EST. As discussed above, contractors and subcontractors will then have an additional opportunity to contact OFCCP regarding their status as a non-objecting contractor/subcontractor by March 17, 2023. Contractors and subcontractors 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.

OFCCP Extends Deadline for Contractors to Object to Release of EEO-1 Data

By Guy Brenner and Olympia Karageorgiou on February 7, 2023 Posted in EEOC, Federal Contractors, OFCCP

As we previously reported, OFCCP plans to release EEO-1 data for non-objecting contractors in response to a Freedom of Information Act (“FOIA”) request seeking contractors’ and subcontractors’ EEO-1 reports from 2016-2020. On February 2, 2023, OFCCP published a list of contractors whose data was scheduled to be released on or around February 8, 2023, and provided those on the list until February 7, 2023 to notify OFCCP if they believe they were incorrectly listed.

On February 7, 2023, OFCCP extended the deadline and expanded the bases on which contractors can raise concerns about being listed. Contractors and subcontractors now have until February 17, 2023 at 11:59 pm EST to inform OFCCP if they believe they have been incorrectly listed. Contractors and subcontractors that believe they have been “incorrectly included” on the list may notify OFCCP that their EEO-1 data should not be released because: (1) the contractor “has previously submitted an objection to the disclosure of their EEO-1 data”; (2) the “organization was not a federal contractor during the relevant period”; or (3) the organization is an “entity associated with [the contractor’s] organization” and “should be covered within” an existing objection.

Contractors 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. 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.

OFCCP Identifies Contractors Whose EEO-1 Data Will Be Released on February 8, 2023

By Guy Brenner and Olympia Karageorgiou on February 3, 2023 Posted in EEOC, Federal Contractors, OFCCP

As we previously reported, OFCCP has received a Freedom of Information Act (“FOIA”) request seeking federal contractors’ and subcontractors’ EEO-1 reports from 2016-2020. The agency previously instructed contractors who objected to the release of their EEO-1 reports to submit their objections by October 19, 2022. OFCCP has now released a list of non-objecting contractors whose EEO-1 data will be released “on or about February 8, 2023.” That list can be found here.

The agency is asking contractors to review the list and to notify the agency if they believe they have been erroneously included. Contractors that believe they have been “incorrectly included” on the list have until February 7, 2023 to notify the agency “that their data should not be released because (a) they were not a federal contractor during the relevant period; or (b) they believe they previously submitted an objection to the disclosure of their EEO-1 data.”

These notices, along with all supporting information, must be submitted to OFCCP-FOIA-EEO1-Questions@dol.gov. OFCCP has a Submitter Notice Response Portal containing additional information and advises contractors that they may contact its FOIA Help Desk at 1-800-397-6251 with questions not covered by the Portal.

OFCCP Announces New Round of Contractors Selected for Audit — Was Your Company Selected?

By Guy Brenner and Olympia Karageorgiou on January 20, 2023 Posted in Affirmative Action, Federal Contractors, OFCCP

On January 20, 2023, OFCCP announced the release of the first Corporate Scheduling Announcement List (CSAL) of FY23. The list consists of 500 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 will not commence until the contractor receives a Scheduling Letter. However, OFCCP changed its policies in March 2022 so that Scheduling Letters may be issued immediately (as opposed to the prior policy of not issuing Scheduling Letters earlier than 45 days from the publishing of the CSAL). So, contractors on the list must understand they are now “on the clock.”

Contractors are advised to review the CSAL (available here) to see if they have been selected for an audit. Those selected should consult with counsel as necessary to ensure they are prepared for their upcoming compliance evaluation (which could come at any time).

Fifth Circuit Affirms Injunction Preventing Enforcement of Contractor Vaccine Mandate Against Louisiana, Indiana, and Mississippi

By Guy Brenner, Jacob P. Tucker and Olympia Karageorgiou on December 20, 2022 Posted in Federal Contractors, OFCCP

On December 19, 2022, the U.S. Court of Appeals for the Fifth Circuit affirmed a preliminary injunction halting enforcement of the federal contractor and subcontractor vaccine mandate requirements issued in response to Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors (the “federal contractor mandate”).

Louisiana, Indiana, Mississippi (the “Plaintiff States”), sought to enjoin enforcement of Executive Order 14042 with respect to contracts entered into between the three states and the federal government, as well as contracts between private contractors in those states and the federal government. On December 16, 2021, the District Court for the Western District of Louisiana granted an injunction barring enforcement of the federal contractor mandate because it determined the plaintiffs, inter alia, (i) had Article III standing to raise individual claims as federal contractors; and (ii) demonstrated the elements necessary to obtain injunctive relief. The court, however, declined to extend the scope of the injunction to non-plaintiff states or federal contractors.

On appeal, a divided Fifth Circuit panel upheld the preliminary injunction. Similarly to the district court, the appellate court declined to extend the preliminary injunction to private contractors within the Plaintiff States.

The Fifth Circuit held that the federal contractor mandate does not comport with the major questions doctrine, which “serves as a bound on presidential authority” and provides that an agency’s exercise of “powers of vast economic and political significance”—such as enacting a vaccine mandate—must be clearly granted by Congress. The court rejected the federal government’s argument that the federal contractor mandate bears a close nexus to the Procurement Act’s goal of promoting economy and efficiency in government contracting, finding instead that the federal contractor mandate is an “‘enormous and transformative expansion in’ the President’s power under the Procurement Act.”

The Court also found that the Plaintiff States sufficiently demonstrated that they would experience irreparable “nonrecoverable compliance costs” if required to comply with the federal contractor mandate, such as the cost of having to choose between firing valuable employees or foregoing federal contracts.

The Fifth Circuit also dismissed the federal government’s argument that delaying the mandate would result in productivity losses from schedule delays and employees being sick, isolating, or quarantined. In response, the Court cited to President Biden’s public comment that “[t]he pandemic is over” and held that regardless, “[t]here is generally no public interest in the perpetuation of unlawful agency action.” In contrast to these “abstract” harms, the Court found that the Plaintiff States articulated more concrete harm should the preliminary injunction be lifted, in the form of loss of employees or federal contracts, as well as other administrative compliance costs.

As to the dissent, Circuit Judge James E. Graves, Jr. contended that the federal contractor mandate is within the scope of the President’s broad authority to issue orders to “improve the economy and efficiency of contractors’ operations” pursuant to the Procurement Act. Judge Graves rejected the majority’s reasoning that the federal contractor mandate is impermissible because it seeks to govern the conduct of employees, rather than employers. Further, Judge Graves argued that the major questions doctrine does not apply to the federal contractor mandate because the mandate: (i) delegates power to the President rather than an unelected agency; and (ii) is an exercise of the government’s proprietary authority, and is not an unlawful “‘enormous and transformative expansion in’ regulatory authority.”

We will continue to report on developments to the federal contractor mandate here.

OFCCP Proposes Changes To Scheduling Letter and Itemized Listing

By Guy Brenner and Olympia Karageorgiou on November 23, 2022 Posted in Federal Contractors, OFCCP

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 Scheduling Letter include:

Requiring contractors who have “campus-like settings”, including “hospitals and information technology companies” and other “work environments in which a contractor “maintains multiple [affirmative action programs (“AAPs”)] for the same campus,” to “submit the information requested in this scheduling letter for all AAPs developed for campuses, schools, programs, buildings, departments, or other parts of [a contractor’s] institution, or company located in” a city. OFCCP justifies this change by noting it is consistent with changes made to its audit scheduling methodology, and claiming the change will “avoid dispute over the compliance obligations of contractors with campus-like settings,” “provides a more efficient use of agency resources and promotes a broader understanding of an organization’s equal opportunity programs through a holistic review of the campus.”
Adding in an option for the scheduling letter to be issued via email with a read receipt requested and requesting that contractors submit their AAPs and itemized listing information electronically.
Modifying language regarding consequences for failure to submit the requested information, so that contractors are notified that “OFCCP may initiate enforcement proceedings if [they] fail to submit the AAPs and Itemized Listing information within 30 calendar days of… receipt of the” Scheduling Letter. The current Scheduling Letter’s language is less precise about what can lead to enforcement proceedings and does not include the deadline contained in the proposed language.

With regard to the Itemized Listing, OFCCP’s proposals include:

Item 4: Expanding the scope of information sought regarding the contractor’s “determination of minority and female availability.” Currently, the Itemized Listing limits the information sought to the factors found in 41 C.F.R. § 60-2.14 (c)(1)-(2) — “the percentage of minorities or women with requisite skills in the reasonable recruitment area” and “the percentage of minorities or women among those promotable, transferable, and trainable within the contractor’s organization.” OFCCP proposes to expand the scope of information sought in Item 4 to all the factors set forth in 41 C.F.R. § 60-2.14.

OFCCP explains its proposal now includes the requirement that “the contractor … provide documentation to OFCCP demonstrating the consideration of the most current and discrete statistical information available, its reasonable recruitment area, and the pool of promotable, transferable, and trainable employees.” OFCCP contends “[t]his change allows OFCCP to better assess whether the contractor is in full compliance with all provisions of 41 CFR § 60-2.14.”

Item 7 (new): Requiring federal contractors to provide “a list identifying all action-oriented programs designed to correct any problem areas identified pursuant to 41 CFR § 60-2.17(b).” OFCCP notes it “does not currently collect information about a contractor’s action-oriented programs with the current compliance review scheduling letter,” and that by “[a]dding this item to the letter” OFCCP will be able “to more thoroughly review contractors’ compliance in this important area, as well as enable OFCCP to understand the action-oriented programs that a contractor is undertaking as part of its AAPs at the beginning of a compliance review.”
Item 8 (previously Item 7): Requiring the contractor to “indicate whether [it] believe[s] the totality of [its] efforts were effective” in recruiting qualified individuals with disabilities. Contractors concluding that the totality of their efforts was “not effective in identifying and recruiting qualified individuals with disabilities” must additionally “provide detailed documentation describing [their] actions in implementing and identifying alternative efforts, as provided in 41 CFR § 60-741.44(f)(3).” OFCCP explains this change is the result of contractor “confusion over what documentation is sufficient for their Item 8 submission,” and will provide for “uniformity in contractors’ submissions and ensure consistency in what OFCCP is requesting across field offices as well as allow OFCCP to more efficiently assess whether the contractor is in full compliance with 41 CFR § 60-741.44(f).”
Item 11 (previously Item 10): Expanding the information contractors must submit regarding their Section 503 utilization analysis. The revised Item 11 specifies that contractors identifying an “underutilization of individuals with disabilities” must “provide a description of the steps taken to determine whether and where impediments for equal employment opportunity exist.” An employer’s response must include an “assessment of personnel processes, the effectiveness of… outreach and recruitment efforts, the results of [the contractor’s] affirmative action program audit, any other areas that might affect the success of the affirmative action program, and a description of action-oriented programs developed and executed to correct any identified problem areas.” OFCCP states this change is a response to contractor “confusion” over the “documentation … sufficient for their Item 11 submission,” and notes the change will “promote uniformity in contractors’ submissions and ensure consistency in what OFCCP is requesting to review across field offices.”
Item 12 (previously Item 11): Similar to proposed Item 8, proposed Item 12 would require contractors to indicate whether they believe the totality of their efforts were effective in recruiting qualified protected veterans and provide “detailed documentation describing [their] actions in implementing and identifying alternative efforts.” OFCCP justifies this change on the same grounds as it provided for proposed Item 8.
Item 19 (new): Requiring contractors to provide “[d]ocumentation of policies and practices regarding all employment recruiting, screening, and hiring mechanisms, including the use of artificial intelligence, algorithms, automated systems or other technology-based selection procedures.” OFCCP explains that the “use of [algorithmic] technologies may lead to instances of screening or selection bias” and so the “addition of this requirement will allow OFCCP to assess the contractor’s use of such technology to determine whether these tools are creating barriers to equal employment opportunity.”
Item 20 (previously Item 18): Requiring contractors to provide additional promotion and termination information, specifically: (a) “identify whether each promotion was competitive or non-competitive,” as well as “the previous supervisor, current supervisor, previous compensation, and current compensation”; (b) “[p]rovide documentation that includes established policies and describes practices related to promotions”; (c) break down “the total number of employee terminations” by “reason(s) for termination (g., retirement, resignation, conduct, etc.) including gender and race/ethnicity information for each.” Proposed Item 20 also requires contractors to provide “[f]or each job title or job group … the total number of employees, by gender and race/ethnicity, as of the start of the immediately preceding AAP year.” OFCCP contends this information is necessary “to create accurate pools for the promotion and termination impact ratio analyses” and that including this information in the Itemized Listing will “promote the timely and efficient exchange of information.”
Item 21 (previously Item 19): Requiring contractors provide two snapshots of compensation data: one as of “the date of the organizational display or workforce analysis, and the other as of the “date of the prior year’s organizational display or workforce analysis.” OFCCP explains that the proposal “will allow OFCCP to better identify whether there is systemic pay discrimination happening at a contractor’s workforce.” Further, Item 21 will “clarify” that contractors must submit compensation data for temporary employees provided by staffing agencies.

In addition, revised Item 21(c) expands on the “documentation and policies related to the contractor’s compensation practices” contractors must submit, to include “those that explain the factors and reasoning used to determine compensation (e.g., policies, guidance, or trainings regarding initial compensation decisions, compensation adjustments, the use of salary history in setting pay, job architecture, salary calibration, salary benchmarking, compensation review and approval, etc.).”

Item 22 (new): Adding a request that the contractor submit “[d]ocumentation that the contractor has satisfied its obligation to evaluate its ‘compensation system(s) to determine whether there are gender-, race-, or ethnicity-based disparities,’ as part of the contractor’s ‘in-depth analyses of its total employment process’ required by 41 CFR 60-2.17(b)(3).”

Pursuant to this query, federal contractors must explain:

“When the compensation analysis was completed;
The number of employees the compensation analysis included and the number and categories of employees the compensation analysis excluded;
Which forms of compensation were analyzed and, where applicable, how the different forms of compensation were separated or combined for analysis (e.g., base pay alone, base pay combined with bonuses, etc.);
That compensation was analyzed by gender, race, and ethnicity; and
The method of analysis employed by the contractor (e.g., multiple regression analysis, decomposition regression analysis, meta-analytic tests of z-scores, compa-ratio regression analysis, rank-sums tests, career-stall analysis, average pay ratio, cohort analysis, etc.).”

This proposed addition is consistent with Directive 2022-01, as revised, which made clear OFCCP would request such information during audits.

Item 24 (new): Requiring the provision of “copies of existing written employment policies concerning equal opportunity, including anti-harassment policies, EEO complaint procedures, and employment agreements, such as arbitration agreements, that impact employees’ equal opportunity rights and complaint processes ….” OFCCP contends this information “will allow OFCCP to better assess a contractor’s EEO compliance.”
Item 25 (previously Item 21): Expanding the information requested regarding contractors’ “most recent assessment of [their] personnel processes,” to include “at a minimum a description of the assessment, any impediments to equal employment opportunity identified through the assessment, and any actions taken, including modifications made or new processes added, as a result of the assessment.” OFCCP contends this change addresses contractor “confusion over what documentation is sufficient for their Item 25 submission,” that “[r]equiring the submission of this additional item will promote uniformity in contractors’ submissions and ensure consistency across field offices in what OFCCP is requesting to review,” and the new information will allow OFCCP “to more efficiently assess whether the contractor is in full compliance with all provisions of 41 CFR §§ 60-300.44(b) and 60-741.44(b).”

As the summary of key changes above demonstrates, OFCCP is seeking to impose significant new initial audit submission requirements. Notably, OFCCP is not proposing to change the 30 day deadline to submit this voluminous amount of information; indeed, as noted above, OFCCP is proposing to emphasize that failure to provide “the requested information … within 30 calendar days” may lead to enforcement proceedings.

The public has until January 20, 2023 to submit comments on proposed changes.

We will continue to monitor and report on further developments here.

OFCCP Hosts Webinar Discussing Changes to FAAP Directive

By Guy Brenner and Megan Childs on November 22, 2022 Posted in Federal Contractors, OFCCP

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 align their Affirmative Action Programs (“AAPs”) with functional or business units, rather than a particular establishment. OFCCP explains that this approach enables a covered contractor “to organize its AAP to reflect how the entity operates functionally rather than where its facilities and people are physically located.” FAAPs may therefore be a preferable and more efficient approach for multi-establishment contractors.

A contractor may choose to utilize both FAAPs and traditional establishment AAPs for different aspects of their organizations. However, a functional or business unit must have: (i) at least 50 employees; (ii) its own managing official; and (iii) the ability to track and maintain its own personnel activity.

Unlike establishment AAPs, FAAPs must be approved in advance by OFCCP. Although FAAPs are not a new option for contractors, OFCCP in recent years has become much more accepting and even encouraging of contractors utilizing FAAPs. Depending on a contractor’s workforce, FAAPs may be an attractive option, but FAAPs have some drawbacks of which contractors should be aware and carefully consider before seeking to transition their establishment AAP(s) to a FAAP.

According to OFCCP, Revision 3 primarily “provides clarification regarding procedural requirements, in addition to minor language and formatting changes, that continue to provide for a FAAP process that is efficient, fluid, and collaborative.”

Although minor, Revision 3 establishes the following changes and clarifications to the Directive:

Corporate Headquarters Information. Contractors requesting a FAAP agreement must provide:

(i) the name and address of the contractor’s corporate headquarters overseeing the contractor operations in the U.S.; and

(ii) the name and contact information of the corporate representative in charge of overseeing the agreement.

Notification of Changes to the Primary Corporate Contact. In the event of a change to the primary contact listed in a FAAP agreement, the contractor must notify OFCCP within 60 days of the change. The communication must provide the updated information of the new primary corporate contact, including their name, address, and email address.
Renewal Procedure. Once established, a FAAP agreement is valid for five years. It may be terminated upon 90 calendar days’ written notice, which must include an explanation and the effective date for the termination. Alternatively, a FAAP agreement can be renewed by following the procedure outlined in Revision 3. A renewal certification must be submitted in writing at least 120 calendar days before the expiration of the existing FAAP agreement.
Electronic Submissions. Where possible, all submissions – including requesting, modifying, or terminating a FAAP agreement – must now be submitted electronically to OFCCP. Instructions on electronic submissions can be found here.

The revisions apply to any covered contractor entering, modifying, or renewing an agreement on or after September 21, 2022.

Further information and guidance is available by contacting OFCCP’s Functional Affirmative Action Program Branch via email at OFCCP_FAAP-UNIT@dol.gov or by phone at (202) 693-1125. Answers to FAQs are also available here.

We will continue to monitor and report on further OFCCP developments.

OFCCP Adopts Updated “Know Your Rights” Poster for Contractors

By Guy Brenner and Olympia Karageorgiou on November 8, 2022 Posted in OFCCP

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 Law” Supplement that contractors previously were required to post.

In announcing the update, OFCCP explained that the new “Know Your Rights” poster “summarizes the federal laws prohibiting job discrimination and explains how employees or applicants can file a complaint if they believe they have experienced discrimination.”

OFCCP further explains that the new “Know Your Rights” poster makes the following changes from the previous “EEO is the Law” posters:

“Notes that harassment is a prohibited form of discrimination”;
“Clarifies that sex discrimination includes discrimination based on pregnancy and related conditions, sexual orientation, or gender identity”;
“Explains protections under Executive Order 11246 related to asking about, disclosing, or discussing pay”; and
“Eliminates the need for federal contractors to post the 2015 ‘EEO is the Law’ Supplement.”

All employers subject to equal employment opportunity (EEO) and nondiscrimination laws must display the latest “Know Your Rights” poster on their premises. While OFCCP has not announced a date by which federal contractors should post the updated “Know Your Rights” poster, the EEOC has advised that employers should post the poster “within a reasonable amount of time.”

As the OFCCP reminds contractors, “the notice must be posted prominently, where it can be readily seen by employees and applicants for employment.” Posters must also be accessible to employees working offsite, as “all applicants and employees must have a way to access the poster, either electronically or physically.”

The OFCCP’s announcement also advises that “federal contractors are still required to post the Pay Transparency Nondiscrimination Provision and include it in employee handbooks and manuals.” The OFCCP’s Posting & Notice Requirements Guide, detailing other posting and notice requirements for contractors, can be found here.

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

By Guy Brenner and Olympia Karageorgiou on November 7, 2022 Posted in Coronavirus, Federal Contractors

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. Our summaries of the ruling and the federal contractor vaccine mandate are available here and here. After the nationwide injunction was issued, the Task Force suspended its enforcement of Executive Order 14042’s vaccine mandate. However, as we previously reported, on August 26, 2022, the Eleventh Circuit upheld the injunction as it pertained to the plaintiffs, but determined the lower court erred in issuing a nationwide injunction barring enforcement of the vaccine mandate against all federal contractors and lifted that portion of the injunction. The Eleventh Circuit’s decision went into effect when it issued its mandate on October 18, 2022.

In anticipation of and following the Eleventh Circuit’s ruling taking effect, the Task Force published two updates for federal contractors related to the vaccine mandate and the impact of the Eleventh Circuit’s decision. On October 14, 2022, the Task Force announced its three-step plan for addressing the narrowing of the injunction:

First, OMB planned to “provide an initial notification to agencies to ensure that they comply with applicable injunctions, including as it relates to any inclusion of a contract clause implementing requirements of Executive Order 14042 in solicitations and new contracts.”

Second, after issuing the notification, “the Task Force intends to update its guidance regarding COVID-19 safety protocols for covered contractor and subcontractor workplace locations. The Task Force will include in its updated guidance a timeline for implementation by contractors and subcontractors. The Director of OMB will also review the updated Task Force guidance and make a determination regarding whether the new guidance promotes economy and efficiency in Federal contracting. Such a determination would be published in the Federal Register, pursuant to Executive Order 14042.”

Third, the “OMB will provide guidance to agencies on timing and considerations for the provision of written notice from agencies to contractors regarding enforcement of contract clauses implementing requirements of Executive Order 14042, except as barred by any applicable injunctions. Such guidance from OMB will not be issued prior to the updated Task Force guidance.”

As OMB advised, “[u]ntil all three of these steps are taken, OMB advises Federal agencies that they should not take any action to enforce any requirement that covered contractors comply with the COVID-19 safety protocols” issued by the Task Force.

On October 19, 2022 the OMB completed step one of its plan, issuing additional guidance to agencies on enforcement of Executive Order 14042. The guidance explains that “to allow time to develop advice and processes for meeting agencies’ obligations under Executive Order 14042 and applicable court orders” agencies should not “(1) take any steps to require covered contractors and subcontractors to come into compliance with previously issued Task Force guidance; or (2) enforce any contract clauses implementing Executive Order 14042.”

Federal contractors should note that the OMB’s current halt on enforcement applies specifically to the federal contractor vaccine mandate and does not implicate the Task Force’s existing guidance for COVID-19 workplace safety protocols with respect to mask wearing for on-site and/or on-duty federal contractors under Executive Order 13991.

We will continue to monitor developments and report on them here.

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