OFCCP announced today proposed regulations which would replace its Sex Discrimination Guidelines.  What’s new?  First, the rules would create new obligations whereas the Guidelines were “interpretations and guidelines” regarding Executive Order 11246’s prohibition of sex discrimination.  Second, given the Guidelines were issued 40 years ago, a lot has changed.  Among other topics, OFCCP says the rules would address pay discrimination, sexual harassment, workplace accommodations for pregnancy, gender identity and family caregiving discrimination.

A copy of the proposed regulations, a fact sheet and FAQs are here.

The proposed rules are scheduled to be published in the Federal Register on January 30, 2015.  Comments on the proposed regulations will be due 60 days from their publication in the Federal Register, which would be March 31, 2015, if the regulations are published on January 30.

We encourage you to weigh-in on the proposed rules.  Many federal contractor advocacy organizations will be submitting comments.  Let your voice be heard by submitting your comments to one of those organizations, or by submitting a comment directly to OFCCP.  Your comments, identifying RIN number 1250-AA05, can be submitted to OFCCP as follows:

  •  www.regulations.gov;
  • Fax: (202) 693-1304 (for comments of six pages or less); or
  • Mail: Debra A. Carr, Director, Division of Policy, Planning, and Program Development, Office of Federal Contract Compliance Programs, Room C-3325, 200 Constitution Avenue, N.W., Washington, D.C. 20210.

At 108 pages, there is a lot to digest in the proposed rules.  Check back soon for analysis of what the regulations require and how they may affect you.

As a follow up to OFCCP’s recent release of FAQs addressing the protected veteran data collection obligations for contractors, we wanted to take a moment to reiterate employers’ continued obligation to solicit veteran status from applicants post-offer.

Under the revised VEVRAA regulations, employers must solicit protected veteran status from candidates both at the pre-offer and post-offer stage.

The changes explained by OFCCP’s new FAQs relate to the detail of information employers are required to collect as part of this self-id process.

At the post-offer stage, employers are required to solicit information about an applicant’s status as a protected veteran but are no longer required to ask the individual to identify the specific category of protected veteran to which they belong.

To reiterate – employers are still required to solicit protected veteran status post-offer, they just no longer have to obtain detail as to the applicable category of protected veteran.

As we addressed in late-September 2014, the new VETS-4212 Form to be filed by employers in 2015 will not require reporting of specific categories of “protected veteran.”  The VETS-4212 will require reporting of only the total number of protected veterans.

Under the revised Section 4212 regulations, employers have the obligation to invite applicants to self-identify as a protected veteran at both the pre-offer and post-offer stages.  At the pre-offer stage, employers have never been required to invite applicants to identify the specific protected veteran category to which they belong.  Previously, the Section 4212 regulations required employers to invite post-offer applicants to identify to which specific category of protected veteran category they belong.

After the regulations were updated, and in connection with release of the new VETS-4212 form, there was a question of whether employers were still required to invite applicants or employees to identify whether they fall into one or more of the specific protected veteran categories.

Today, OFCCP answered the question in the posting of two new VEVRAA FAQs and the answer is “No.”

OFCCP’s FAQs explain:

 [S]ince the new VETS-4212 report no longer requires contractors to provide this information by the individual protected veteran categories, contractors are not required to invite self-identification by category in order to comply with VEVRAA’s post-offer invitation requirement. Rather, contractors need only invite those offered a job to indicate whether they are protected veterans under any of the VEVRAA categories.

Though not required, contractors may choose to continue to invite applicants to voluntarily self-identify the specific category or categories of protected veteran to which they belong at the post-offer stage …

This raises yet another question – Is there any benefit to collecting information on the specific protected veteran categories now that it’s not required?  In answering this question you should weigh the risks in collecting the information against any benefit from gathering the information given there is no longer any obligation to collect it.

Get a jump start on the year and come learn what you need to know about all of the new and upcoming obligations for federal contractors.  Join us at The OFCCP Institute’s first conference of 2015 in San Francisco on February 25th and 26th.

We will do a deep dive into the many new obligations emerging from President Obama’s recent series of executive orders. We also will examine and explain the OFCCP’s latest enforcement trends, including the new Scheduling Letter.

As you know in 2014 the President signed several executive orders imposing significant new requirements on employers that do business with the federal government, either as direct “prime” contractors or as subcontractors. These new executive orders will require a quick review and often wide-ranging changes to your employment and human resources policies and practices. In addition, OFCCP recently revised its Scheduling Letter and  is embarking on a wave of compliance audits during which the Agency will for the first time enforce the new veterans and disability regulations and continue its rapidly changing approach to investigating your pay systems for potential discrimination.

It’s time to get educated about the still- changing (and expanding) obligations of government contractors.  So come join me and a distinguished faculty of speakers in San Francisco for The OFCCP Institute’s Compliance Conference on February 25-26.

For the conference agenda and to register, click here.  Hope to see you in San Fran.

As we previously reported, OFCCP published the Executive Order 13672 Final Regulations regarding sexual orientation and gender identity discrimination on December 9, 2014 without the public notice and comment period typically required by the Administrative Procedure Act (APA), such as with the veteran and Section 503 regulations.

Since then some confusion has arisen as to whether OFCCP has opened the Final Regulations for public comment in response to Congressional pressure.  It has not.

Here’s the story.  On December 3, 2014, OFCCP released the Final LGBT Regulations stating its position that the Regulations fall within an exemption to the APA’s notice and comment requirement.  As set forth in an OFCCP FAQ:

President Obama’s Executive Order was very clear about the steps the Department of Labor was required to take, and left no discretion regarding how to proceed. In such cases, principles of administrative law allow an agency to publish final rule without prior notice and comment when the agency only makes a required change to conform a regulation to the enabling authority, and does not have any discretion in doing so.

This position was also set forth in the Regulations themselves.  79 FR 72987.  Ahead of the publication of the Final Regulations, the Committee on Education and the Workforce of the House of Representatives, which has oversight of OFCCP, sent a  letter to Director Shiu urging OFCCP to allow public comment pursuant to the APA.  The Committee has requested a response from OFCCP by this Wednesday, December 17.

During a Webinar on December 5 regarding the Final Regulations, OFCCP stated its intention to publish the Final Regulations in the Federal Register on December 9, 2014.  In addition, OFCCP mentioned it would also be publishing a Notice requesting comment on potential information collection aspects of the Final Regulations but that the Notice would not affect the Final Regulations.

As represented, OFCCP published the information collection Notice in the Federal Register on December 8 and the Final Regulations on December 9.  The Notice refers to the Final Regulations being published concurrently, and requests comment on only certain aspects of the Regulations which might be interpreted as information collection requirements.  79 FR 72703.  The Final Regulations also refer to the concurrent publication of the Notice regarding information collection.  79 FR 72992.      The information collection notice is not a Notice of comment for the final LGBT rules.

As such, the Final Regulations are not currently open for comment and are set to go into effect on April 8, 2015 as published.

Stay tuned for more as OFCCP responds to the Committee on Education and the Workforce of the House of Representatives inquiry into these Final Rules.

As a follow up to a story from earlier this year, the D.C. Circuit court has rejected the Associated Builders and Contractors, Inc. (ABCs) challenge of the requirements under the revised regulations implementing Section 503 of the Rehabilitation Act.

In November 2013, ABC filed suit alleging OFCCP issued its recently revised regulations pertaining to individuals with disabilities in violation of the Rehabilitation Act, the Administrative Procedures Act, as well as the Regulatory Flexibility Act.

In March 2014, days before the regulations became effective, ABC’s challenge was denied by a lower court and the regulations went into effect as scheduled.

In this latest round of challenges, ABC appealed the lower court’s ruling to the D.C Circuit Court.  The D.C. Circuit court found OFCCP did not exceed its authority in promulgating the new rules.

Whether ABC decides to appeal this latest decision remains to be seen; but as of now, the regulations stand intact and contractors are required to adhere to the provisions as set forth in the final rule.

In FAQs released yesterday, OFCCP addressed requirements under the new Scheduling Letter for contractors to provide updated data collected pursuant to the revised Veterans and Individuals with Disability regulations if the contractor is more than six months into its current AAP plan year upon receipt of a Scheduling Letter.

OFCCP has previously indicated a contractor’s compliance with Subpart C of the new regulations does not go into effect until the contractor first updates its AAP after the March 24, 2014 effective date for the regulations.

Thus, contractors who are not yet subject to Subpart C of the new regulations are not required to provide the six month updates on itemized listing items under VEVRAA or Section 503 until they are more than six months into their plan year after they become subject to Subpart C.

Adding to the FAQs previously released, OFCCP has released additional guidance addressing audit submission requirements under the new Scheduling Letter for contractors more than six months into their plan year when the Scheduling Letter is received.

Items 9 and 13 of the Scheduling Letter require contractors to provide documentation of the computation or comparisons called for in section .44(k) of the VEVRAA and Section 503 regulations.   These sections require data collection on the number of job openings, jobs filled, total applicants and hires, and total disabled/protected veteran applicants and hires.  The new FAQs clarify that if a contractor is more than six months in their AAP plan year when they receive a scheduling letter, the contractor must provide this information for the first six months of their plan year.

The same is true in connection with item 10 of the itemized listing which addresses evaluation of the company’s utilization of individuals of disabilities.  If a contractor is more than six months into their plan year when they are scheduled for a compliance review, the contractor is required to submit the utilization for the first six months of the plan year, or in the alternative, provide OFCCP with the information so that OFCCP can perform the analyses.

Finally, in the third FAQ issued today, OFCCP clarified that for contractors scheduled for a compliance review more than six months into their plan year, the contractor need only “provide documentation of the benchmark adopted for the current AAP.”  The contractor does not have to analyze or compare the hiring rate of protected veterans to the adopted benchmark.

As OFCCP continues to initiate and undertake compliance reviews under the new Scheduling Letter we expect additional guidance to be released.  We’ll provide updates as they become available.

We learned today OFCCP is considering dispensing with the twice-a-year advance audit notification frequency, in exchange for notifying smaller groups on a more frequent basis about their establishments’ selection for an upcoming OFCCP compliance review.

For the past several years, OFCCP has issued Courtesy Scheduling Announcement Letters (CSALs) twice a year.  It is our understanding that OFCCP is now considering sending the advance notices letters more often, commencing with a batch of letters going out in January of 2015.

Whether OFCCP finalizes these plans, and any impact of more frequent notifications remains to be seen.  We’ll be sure to update you when we learn more.

As we alerted you to earlier today, OFCCP has issued its final rule implementing Executive Order 13672, providing non-discrimination protection for individuals on the basis of sexual orientation and gender identity.

There was early speculation that this rule might involve soliciting of LGBT status from applicants or employees as well as a requirement for some type of data analyses.  That is not the case.  The rule instead take a more “minimalist approach” in implementing the President’s Executive Order, requiring that contractors include gender identity and sexual orientation as prohibited bases of discrimination through inclusion in the Equal Opportunity Clause.

Rule Finalized Without Notice and Comment

OFCCP addresses its decision to implement the rule without public comment in a FAQ.  On this point the Agency says:

 “President Obama’s Executive Order was very clear about the steps the Department of Labor was required to take, and left no discretion regarding how to proceed. In such cases, principles of administrative law allow an agency to publish final rule without prior notice and comment when the agency only makes a required change to conform a regulation to the enabling authority, and does not have any discretion in doing so.”

The fact that there are no recordkeeping or solicitation obligations may provide the Agency with a stronger footing to rebut potential challenges to its decision to finalize these rule without putting them out for notice and comment.

Religious Exemption

As publicized when it was first executed, Executive Order 13672 does not contain a religious exemption.  Consistent with this, OFCCP’s final rule implementing the order does not provide for an exemption from adherence with the Final Rule on religious grounds.  The Agency explains in an FAQ that the new Executive Order (and implementing rule) do not change the existing religious exemption to Executive Order 11246.  This exemption was added to Executive Order 11246 by President Bush in 2002 and allows religiously affiliated contractors to favor individuals of a particular religion when making certain employment decisions.

Despite this existing exemption, and in light of the fact the it does not address the exemption of religious organizations based on the beliefs of the organization, the Agency could see legal challenges involving implementation and compliance with this rule.

The final rule is expected to be published in the Federal Register on December 5, 2014.  The rule will become effective on April 4, 2015, 120 days from publication.

Now that the final rule has been released, contractors should take the time before they become effective to ensure their policies, contract language and other materials are up-to-date as well as take the time to train and educate managers and hiring personnel on the implications of these new protections.