OFCCP Releases Fall 2010 Regulatory Agenda

Emphasizing the importance of planning ahead, and echoing the Department of Labor’s (DOL) “Plan, Prevent and Protect” approach to ensuring workplace safety, security, and equality, Office of Federal Contract Compliance Programs (OFCCP) Director Patricia A. Shiu unveiled OFCCP’s goals for regulatory reform in 2011 on December 22, 2010. The full semi-annual regulatory agenda can be viewed here. Unsurprisingly, OFCCP’s agenda for 2011 is consistent with the agency’s 2010-2016 strategic plan, a draft of which was released in April 2010. Click here for our Management Alert discussing the strategic plan.

Additionally, Director Shiu will host a live web chat on Friday, January 7, to discuss OFCCP’s agenda. Interested participants can get information about joining the chat by clicking here.

Development of Strategic Compensation Data Collection Tool

As anticipated, OFCCP is contemplating a new compensation data collection tool as part of an effort to “realiz[e] President Barack Obama’s goal of ending, once and for all, the persisting gap in wages between men and women, especially women of color.” OFCCP plans to issue an Advance Notice of Proposed Rulemaking (ANPRM) in February 2011, seeking public comment on the scope, content and format of the new tool for collecting pay information from federal contractors and subcontractors. According to the published semi-annual agenda, OFCCP also may use the tool to conduct enterprise-wide or industry-specific analyses.

Substantive Analysis of Recruiting Efforts and Hiring of Covered Veterans

Continuing its focus on covered veterans, OFCCP will issue 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, as amended (VEVRAA). The NPRM is planned for January 2011, with the public comment period to end in April.

As part of its effort to strengthen affirmative action requirements for covered veterans, according to the regulatory agenda, the NPRM would amend the VEVRAA regulations to require federal contractors and subcontractors to conduct more substantive analyses of recruitment and placement actions taken with respect to covered veterans and, significantly, would require federal contractors and subcontractors to use numerical targets to measure the effectiveness of affirmative action efforts. The NPRM also would revise the recordkeeping requirements for contractors. These proposed types of revisions would impose significantly different burdens on contractors than under the existing regulations.

Individuals With Disabilities

OFCCP also plans to publish an NPRM to revise the regulations implementing Section 503 of the Rehabilitation Act of 1973, as amended, in July 2011. An ANPRM previously was published on July 29, 2010. Click here for more information about that ANPRM.

According to the agenda, the “NPRM would amend the regulations to require that Federal contractors and subcontractors increase linkages and conduct more substantive analyses of recruitment and placement actions take under section 503,” as well as make revisions to the recordkeeping requirements.

Enhanced Affirmative Action Requirements for Federal Construction Contractors

Additionally, OFCCP plans to publish an NPRM to revise the affirmative action requirements applicable to federal and federally-assisted construction contractors in July 2011. The regulatory agenda refers to data indicating that disparities in the representation of women and racial minorities continue to exist in on-site construction occupations. The NPRM would propose a “new method for establishing affirmative action goals” and propose other revisions to the construction regulations as well.

The regulatory agenda notes that increasing the scope of required actions may impose some additional cost on construction contractors. It further notes that the benefits of revised regulations likely would include increased diversity and opportunities for women and minorities in on-site construction jobs.

What Contractors Should Do Now

While OFCCP is exploring new methods of gathering compensation data and analyzing contractor compensation, we understand that some OFCCP offices currently are flagging job titles where average pay for males and females or minorities and non-minorities has a differential of two percent (2%) or more. Contractors may consider reviewing their compensation data using this approach.

Contractors also should review their current methods of inviting covered veterans to self-identify, as well as their current processes for recording that data. Currently, contractors need only post an invitation to self-identify where employees and post-offer applicants can view it. However, OFCCP may encourage a more robust process, such as utilizing a questionnaire at the appropriate stage of the hiring process, comparable to the obligations federal contractors and subcontractors have to solicit race and gender data from applicants under Executive Order 11246. It is important to remember that, under most circumstances, applicants may not be asked to self-identify as disabled veterans (or disabled individuals) until after an offer of employment has been extended. Contractors also should review how they track recruitment activities directed towards veterans and the effectiveness of current activities.

Taking proactive measures for individuals with disabilities also is a worthwhile endeavor. Contractors should ensure that each facility has active relationships with local recruiting sources and other local linkages for disabled candidates, as well as covered veterans, women and minorities. Many OFCCP audits, especially, although not exclusively, those in the Midwest Region, involve in depth review of these linkages. OFCCP’s focus on active, local relationships is noteworthy since many employers have centralized their recruiting activities and have discontinued sourcing from local disability organizations.

Construction contractors may face a new process for establishing affirmative action goals, perhaps more similar to the approach under the supply and service regulations. It is too early to know what will be required or what adjustments construction contractors will need to make. We will continue to bring you news on these important developments as they occur.

If you have questions about this One Minute Memo, OFCCP’s semiannual regulatory agenda or previously-issued strategic plan, submitting comments in response to an NPRM, or anything else, please contact the Seyfarth attorney with whom you work or any attorney on our OFCCP & Affirmative Action Compliance Team.