All existing supply or service contractors (at the prime and subcontract level) that meet the OFCCP’s jurisdictional thresholds must register and certify compliance with the AAP requirements. New contractors have 120 days to develop their AAP(s), and must register and certify compliance through the Contractor Portal within 90 days of developing their AAP(s). At present
OFCCP’s New Contractor Portal: What Contractors Need to Know
On December 2, 2021, the Department of Labor’s Office of Federal Contractor Compliance Programs (“OFCCP”) announced the creation of a new Contractor Portal. Starting next year, federal prime contractors and subcontractors will be required to register on the portal and submit a formal certification, on an annual basis, as to whether they have developed and maintained an Affirmative Action Program (“AAP”) in accordance with OFCCP requirements. If selected by OFCCP for a compliance review, contractors will use the same portal to upload their AAPs in addition to any other requested information. The Contractor Portal is expected to open for registrations on February 1, 2022, with the certification features available March 31, 2022. By June 30, 2022, all existing contractors and subcontractors must certify compliance with the AAP requirements.
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OFCCP Promulgates Final Rule Eliminating Its Authority Over TRICARE Providers
On July 2, 2020, the Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) promulgated a final rule resolving long-standing uncertainty regarding its enforcement authority over health care providers participating in TRICARE, a federal program that provides health care to service members, veterans, and their families. The rule officially removes OFCCP’s regulatory authority over TRICARE providers by amending the definition of “subcontract” set forth in the governing Department of Labor regulations. Although the amendment carves out TRICARE providers from OFCCP authority by name and leaves the rest of the “subcontractor” definition unchanged, OFCCP expressly raised the possibility that it would issue additional sub-regulatory guidance concerning its jurisdiction over Federal Employees Health Benefit Program (“FEHBP”) and Veterans Administration Health Benefit Program (“VAHBP”) providers.
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Incoming! Issuance of 1,000 Notifications Portends Ramp-Up of OFCCP Enforcement Activity
On February 1, the Office of Federal Contract Compliance Programs (OFCCP) issued 1,000 corporate scheduling announcement letters (CSALs) to federal contractors, a move that suggests a renewed emphasis on the agency’s enforcement of anti-discrimination and affirmative action employment laws. CSALs are informal notices that precede the official initiation of an OFCCP compliance evaluation, but the issuance of these letters serves as both a sign of OFCCP’s enforcement posture under the Trump administration and a call to action for the contractor establishments that receive these notifications.
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Endgame for the Blacklisting Order
Congress recently began the process to legislatively overturn the regulations implementing President Obama’s “Fair Pay and Safe Workplaces” Executive Order. Under the Congressional Review Act, Congress can dismantle regulations that were finalized in the waning days of a presidential administration. Our colleagues in the Public Policy & Government Affairs practice provide some details of the…
D.C. Circuit Upholds Employment Regulations
Over the past year, we have been tracking the uptick in executive and regulatory actions affecting the labor and employment practices of government contractors. Last Friday, the D.C. Circuit upheld one of those regulations. The decision concludes the first skirmish in what promises to be a lengthy and high-stakes legal battle involving industry, Congress, and the Administration.
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DOL Implements New Rule: Government Contractors and Subcontractors Prohibited from Discriminating Against LGBT Workers.
Today, the Department of Labor (“DOL”) published a new final rule “prohibiting discrimination on the bases of sexual orientation and gender identity in the federal contracting workforce.” This rule implements Executive Order 13672, signed by President Obama on July 21, and marks the first federal action ensuring LGBT workplace equality that implicates the private sector.
Prior to implementation of this rule, as a result of Executive Order 11246, federal regulations prohibited federal contractors and subcontractors from discriminating on the basis of race, color, religion, sex, and national origin, and required them to take affirmative steps to prevent discrimination on those bases from occurring. Now, however, the list of classifications will be amended to substitute “sex, sexual orientation, gender identity, or national origin” for “sex or national origin.” The new language must be inserted into the Equal Opportunity Clause by federal agencies in all covered contracts and by prime contractors into covered subcontracts. The new language will apply to contracts entered into or modified on or after April 8, 2015 (the effective date).
Last Wednesday, December 3, following DOL’s announcement of the final rule, Rep. John Kline, Chair of the House Education and Workforce Committee, and Rep. Tim Walberg, Chair of the House Subcommittee on Workforce Protections, sent a letter to the Director of DOL’s Office of Federal Contract Compliance Program (“OFCCP”) urging that the Office allow for a 60-day period for the public to comment on the regulation. The Congressmen asserted that Section 553 of the Administrative Procedure Act (“APA”) requires general notice of a proposed rulemaking with an opportunity for public participation. DOL, of course, disagreed. The agency indicated that implementation without prior notice and comment “is consistent with agency precedent under other Administrations,” and that because the Executive Order was “very clear” and “left no discretion regarding how to proceed,” principles of administrative law allow DOL to publish the final rule without prior notice or comment.…
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