Fall 2021 OFCCP Developments
President Biden announced his administration’s regulatory agenda recently, and there are six items that pertain to OFCCP. The majority of the items will be published in The Federal Register next year, and several of them need to be on government contractors’ radar. The four proposed rules on which OFCCP intends to invite comments are:
- Access to Records Regulatory Updates – RIN 1250-AA12 – OFCCP intends to update 40 CFR 60-1 and 60-40 to bring OFCCPs Freedom of Information Act (FOIA) regulations "in line with relevant legal authorities and case precedent." (Proposed rule expected September 2022)
- Depending on what the OFCCP proposes, this proposal could impact the ability of requestors to obtain EEO-1 information and the ability of government contractors to shield it.
- If the OFCCP simply wants to include gender identity and sexual orientation as protected categories, the regulation may have little practical impact since most government contractor organizations updated their EEO policies long ago to include those protected categories. If the OFCCP wants to propose that contractors prepare their utilization or goal analyses on a race-by-race basis, however, this proposal could have far-reaching consequences.
- Contractors praised the Pre-Determination Notice procedures that OFCCP codified in 2020 during the Trump Administration (at 41 CFR Section 60-1.33) because these procedures afforded them additional due process rights. If the OFCCP wants to allege discrimination, it needs to show the employer its evidence and afford the employer an opportunity to object or present new or additional evidence to rebut the allegation before the OFCCP issues an official Notice of Violation. If the OFCCP tries to walk back contractors' due process protections, contractors will have to watch this regulatory proposal closely and be prepared to comment.
- This is the most complicated of the four regulations that OFCCP intends to propose.
- It is relatively easy for a prime construction employer to identify its subcontractors, and it is somewhat straightforward for a contractor whose contract is subject to the Federal Acquisition Regulations to identify its subcontractors, but there are thousands of employers who are not going to be able to identify which vendors and suppliers are providing a good or service "necessary to the performance of the government contract."
- Moreover, when a long-time commercial supplier finds out that the purchaser just supplied its company's name and information to the OFCCP for audits, many suppliers are going to stop supplying the good or service instead of incurring the compliance costs.
A fifth item already was published in The Federal Register on November 9, 2021 at 86 FR 62115, and the period to submit comments closed on December 9, 2021. OFCCP intends to rescind the regulation it promulgated during the Trump Administration that modified the religious exemption to nondiscrimination:
- Proposal to Rescind Implementing Legal Requirements Regarding the Equal Opportunity Clause's Religious Exemption – RIN 1250-AA09 – To rescind the 2020 final rule "Implementing Legal Requirements Regarding the Equal Opportunity Clause's Religious Exemption" (85 FR 79324). This recission will return the regulations implementing the religious exemption in Executive Order 11246 to the narrower pre-Trump administration interpretation of the exemption applying Title VII principles and applicable case law. (No date currently predicted for final recission or additional comment period)
The final OFCCP item on the Unified Agenda contains only technical amendments and will be published as a final rule in 2022:
- Technical Amendments to OFCCP Regulations – RIN 1250-AA16 – To update the jurisdictional thresholds for section 503 and VEVRAA in the regulations to reflect current inflation adjusted thresholds ($15,000 and $150,000 respectively).
- The updates will not change the thresholds, as the current inflation adjusted amounts have been effective since the 2004 enactment of Section 807 of the Ronald Reagan National Defense Authorization Act, codified at 41 U.S.C. § 1908, but the technical corrections will update the regulations to reflect the current amounts. The amendments also will correct OMB control number references and remove gender assumptive pronouns from the regulations. (Final rule expected February 2022)
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