For federal contractors and subcontractors, there were both presents and coal buried in the Unified Agenda of Federal Regulatory and Deregulatory Actions, which was released after a long delay on December 21, 2012. The Unified Agenda provides a roadmap for regulatory activities under development throughout the Federal Government, covering approximately 60 departments, agencies, and commissions, including the U.S. Department of Labor. Click here for the U.S. Department of Labor’s updated 2012 Agenda as modified in these waning days of the year. In the Agenda, the Office of Federal Contract Compliance Programs (“OFCCP”) made official that neither the disability nor the veterans regulations will be issued until at least Spring 2013. However, the Agency also signaled that the controversial workforce utilization goal will likely remain in the final disability regulations and also indicated its intention to move forward with the development of a compensation data collection tool and amendments to the sex discrimination and construction guidelines.
Update on the Disability and Veterans Regulations
Two of the three major regulations impacting federal contractors are currently under revision. Given the enormity of the changes proposed, it is no wonder that federal contractors and subcontractors have been anxiously awaiting the final versions of the “game changing” regulations governing affirmative action for veterans and individuals with disabilities. (For a more detailed discussion of the proposed regulations concerning individuals with disabilities, click here, and relating to veterans, click here.)
The OFCCP had been very tightlipped about when to expect the final regulations. The 2011 Unified Agenda originally targeted the release of the veterans’ regulations for the summer of 2012 and provided no timeline for the release of the disability regulations. Since then OFCCP leadership has declined repeated requests to provide updated information about the timing of the regulations. As a result, the Agenda issued on December 21st contains very big and good information for federal contractors and subcontractors eager for an update on the timing of the final regulations. In it, the OFCCP set April 2013 as the target date for the release of the final veterans and disability regulations, although it is more likely that the final regulations will not be published until after April 2013 given the OFCCP’s history of overly ambitious regulatory schedules. Thus, Federal contractors and subcontractors can relax a little during the Holiday season knowing that the regulations will not be published until sometime after Spring 2013.
The Agenda also suggests that the OFCCP may try to issue both sets of regulations simultaneously, which would ultimately ease implementation burdens on federal contractors. This is welcome news for contractors given that they will not be forced to change their HRIS systems, policies, and practices for one set of regulations only to have to do it again a few months later for the next.
The description of the disability regulations, however, was amended slightly to signal that the controversial workforce composition benchmark will likely remain in the final regulations in some form. In the proposed rule, the OFCCP put forth a single, nationwide utilization goal of 7 percent for the employment of individuals with disabilities in each job group. The OFCCP appears to be moving forward with this proposal, and has even strengthened the language to call the benchmark a “utilization goal,” a change from the 2011 Unified Agenda which referred to the benchmark as a “good faith placement goal,” suggesting there might be some teeth to OFCCP Director Pat Shiu’s comment earlier this year that “good faith efforts are not enough.”
Data Collection Tool Moving Full Steam Ahead, Despite Warnings from the National Academy of Sciences
Although the OFCCP pushed back the targeted release of the veterans and disability regulations, the OFCCP somewhat surprisingly indicated its intention to push ahead with rulemaking for a new compensation data collection tool.
Many believed that OFCCP would follow astute recommendations of the National Academy of Sciences, in their report which was commissioned by the Equal Employment Opportunity Commission, and slow down their drive to develop a new data collection tool. (Click here for more information on the NAS report.) In the report, the NAS concluded that the federal government is nowhere near prepared for the “significant undertaking” of implementing a tool to collect compensation data by race, gender, and national origin, not to mention the burdens and costs associated with such a collection tool. As a result, it was surprising to see that the OFCCP listed the issuance of a Notice of Proposed Rulemaking (“NPRM”) for a new compensation data collection tool in June 2013, as its second regulatory priority, behind the veterans and disability regulations.
Click here for more information about the OFCCP’s actions to date on the data collection tool.
Sex Discrimination and Construction Regulations
Finally, the OFCCP still intends to revise the sex discrimination and construction guidelines.
The OFCCP’s sex discrimination guidelines have not been updated since 1978 and the OFCCP has said these regulations now “warrant a regulatory look back.” In the 2012 Agenda, the OFCCP indicated that it intends to issue a NPRM in August 2013 to create sex discrimination regulations that reflect what the OFCCP believes is the current state of the law in this area.
Finally, the OFCCP indicated that it still intends to revise the regulations governing federal and federally-assisted construction contractors and subcontractors. The Agency indicated its plans to issue a NPRM in this arena in October 2013. However, given the Agency’s already bloated regulatory agenda for 2013, we do not expect new construction guidelines during 2013.
What This Means for Contractors
Contractors and subcontractors can breathe a bit easier knowing that they will not be returning to onerous new regulations right after the holidays. This is particularly welcome news for many contractors and subcontractors with calendar year affirmative action plans. However, with the final veterans and disability regulations targeted for release in April 2013, and a new compensation data collection tool NPRM targeted for June 2013, sex discrimination NPRM in August 2013, and new construction regulation NPRM in targeted for October 2013, we are gearing up for a busy 2013 and look forward to collaborating with you.