Earlier this month, the US Department of Labor issued its Spring 2011 Regulatory Agenda. OFCCP's contributions to the Agenda confirmed Director Patricia Shiu's continuing commitment to wholesale regulatory overhaul. Specifically, Director Shiu stated that, in addition to the proposed changes published by OFCCP in April 2011 related to the veterans regulations, OFCCP also plans to re-write the regulations related to construction contractors, people with disabilities, and sex discrimination, as well as develop a new compensation data collection tool. On July 12, 2011, Director Shiu hosted a live web chat to discuss OFCCP's Spring 2011 Agenda. Click here to read the Agenda.
Development of a New Compensation Data Collection Tool
Shortly after President Obama was elected to office, he made it clear that he intended to eliminate gender and race-based compensation discrimination. To that end, in the 2011 Agenda, OFCCP stated its intent to develop a new tool for collecting compensation data from contractors. OFCCP's stated purposes underlying this tool include: identifying contractors that are likely to violate Executive Order 11246 and conducting establishment-specific, contractor-wide, and industry-wide compensation analyses. During her July 12th web chat, Director Shui stated that OFCCP will publish an Advance Notice of Proposed Rulemaking seeking input from the public on the development of such a tool within the next few weeks.
Evaluation of Contractor Recruitment, Placement, and Hiring Efforts For Covered Veterans
On April 26, 2011, OFCCP published a Notice of Proposed Rulemaking (NPRM) to revise the regulations implementing the nondiscrimination and affirmative action provisions of the Vietnam Era Veterans' Readjustment Assistance Act (VEVRRA), as amended. The public comment period closed on July 11, 2011. Seyfarth Shaw submitted comments to the NPRM. Click here for our comments.
In the NPRM, OFCCP proposed numerous regulatory changes. Most significantly, OFCCP proposed a requirement that federal contractors and subcontractors (hereinafter referred to as "contractors") engage in certain mandatory outreach with organizations representing veterans, collect and analyze referral, applicant, hiring, and job opening/job fill data, establish hiring benchmarks, revise the self-identification process, and engage in numerous training and communications efforts. During the July 12th web chat, Director Shiu stated that the Agency received approximately 80 comments in response to the NPRM and that OFCCP rejected the recommendation of several employer advocacy groups that it rescind the NPRM. Shiu stated that the final regulations will be published in Spring 2012, with an as of yet undefined grace period for contractor implementation. Needless to say, most contractors will find compliance with the proposed changes to be quite burdensome.
Individuals With Disabilities
In the Agenda, OFCCP also stated that it will issue an NPRM next month, August 2011, proposing revisions to the regulations implementing Section 503 of the Rehabilitation Act of 1973, as amended. OFCCP previously published an Advanced Notice of Proposed Rulemaking on July 23, 2010, seeking public comment through September 21, 2010, on possible revisions to Section 503's regulations. In the Agenda, OFCCP provided a brief hint of what's to come in the Section 503 NPRM. Specifically, and similar to the VEVRRA NPRM, OFCCP stated that it will require contractors to increase linkages with organizations representing individuals with disabilities, conduct more substantive analyses of recruitment and placement actions taken with respect to people with disabilities, and revise the recordkeeping requirements.
Affirmative Action Requirements for Federal Construction Contractors
OFCCP also stated its intention to publish an NPRM proposing revisions to the affirmative action requirements applicable to construction contractors. According to the July 12th web chat, Director Shiu anticipates a November 2011 publication date. The construction contractor regulations were last revised in 1980. In the Agenda, OFCCP stated that the proposed regulations will remove certain outdated regulations and propose a new method for establishing affirmative action goals, with the stated goal of increasing the representation of women and minorities in on-site construction jobs. OFCCP admitted that the proposed changes may impose additional costs on contractors.
Other Items Of Interest From the July 12, 2011 Web Chat
During the July 12th web chat, Director Shiu also spoke to the May 12, 2012 Notice proposing revisions to the Agency's Scheduling Notice that begins each OFCCP audit and attached itemized listing. Shiu stated that the revised Scheduling Letter will be sent to the Office of Management and Budget by the end of July for further review and that a second round of public comments will be provided 30 days before final approval of the revised Scheduling Notice. Initial public comments were due on July 11, 2001. Click here to review the comments submitted by Seyfarth Shaw.
Shiu also stated that the Agency would issue an NPRM relating to its sex discrimination guidelines in February 2012, that an updated version of the Agency's Federal Contractor Compliance Manual (used by Agency staff to conduct Compliance Evaluations) would be published this fall, and that OFCCP's Employer Resource Referral Directory will be re-posted on its website in the next few weeks.
In addition, Shiu announced that letters were recently sent to all contractors with Functional Affirmative Action Plans (FAAP) instructing them to contact OFCCP regarding their intent to renew their FAAPs in accordance with the recent FAAP directive.
Finally, Shiu summarized settlement data for the first 6 months of fiscal year 2011. Shiu stated that OFCCP has entered into 44 Conciliation Agreements, providing 5.66 million dollars in financial compensation, 657 job offers, and covering 8,090 victims. Shiu stated that this represents a 25% increase in Conciliation Agreements and more than double the financial remedies over this same period last year.
What Contractors Should Do Now
Interested contractors should review the DOL/OFCCP Spring 2011 Semi-Annual Regulatory Agenda which can be accessed above. Director Shiu's July 12, 2011 web chat is also archived for review on OFCCP's website. Contractors should remain on the alert for OFCCP's various planned NPRMs and consider submitting comments in response. We can assist with comments or include your thoughts in our comments. We can also assist with mock audits to help your organization assess its state of readiness for the anticipated regulatory changes and smooth the way for implementation once the regulations are finalized.