In Part I of this post we examined the close connection between the OFCCP’s focus on pay equity and the hiring of veterans and individuals with disabilities (IWDs) in 2014 and President Obama’s agenda. We continue here by comparing the President’s agenda and actions regarding LGBT workers and other, more general workers’ rights issues with those of the OFCCP during 2014.
General Workers’ Rights Protections and Issues
The President on July 31 signed E.O. 13673, the Fair and Safe Workplaces Executive Order, which requires contractors during the bidding/solicitation process for contracts of $500,000 or more to disclose any violations of federal or state anti-discrimination, safety, wage and hour, and leave laws in the three years prior to the bidding/solicitation. Contractors may also disclose steps they have taken to correct any such violations. In addition, this Executive Order requires contractors to provide their employees with notification of wages, hours worked, overtime and deductions within each pay period; if they are being classified as independent contractors, then federal contractors must notify them as such. Finally, subject to some narrow exceptions, in contracts of $1 million or more, contractors cannot require employees to enter into binding arbitration of Title VII or other sexual harassment/assault claims. In this last prohibition, you can see that what the President has been unable to achieve in the larger context, he has managed to impose in the federal contracting world. While the President did, of course, direct the OFCCP to implement regulations, it looks like it may be awhile before we see them, as full implementation is not expected to begin until 2016 (Stay tuned for more on that in Part III of this series.)
Prior to this Executive Order the President signed E.O. 13658 in February, thereby raising the floor on federal contractor employees’ wages to $10.10 an hour. The rationale is that raising wages improves quality and efficiency of services provided to the government, lowers turnover, increases morale, and should lead to higher productivity overall on federal contracts. Note, however, that since the President cannot re-write existing contracts, this pay raise will not take effect until the start of new contracts between the contractor firms and the federal agencies. This Executive Order directed the OFCCP to issue regulations.
The OFCCP found itself compelled to push off some items originally on its agenda for 2014 in order to respond to the President’s call for action on his Executive Orders targeting pay equity and non-discrimination against LGBT employees of federal contractors and sub-contractors.
The OFCCP had announced last year that it expected to issue proposed rules updating affirmative action regulations for construction contractors—specifically focusing on sex discrimination in the construction industry. Originally it was to have issued proposed rules by April. In June the OFCCP announced that contractors were not likely to see these proposed rules until January 2015. Given the absence of any indication of further action here, it is reasonable to assume that contractors will not see proposed rules this month either. Similarly the OFCCP announced its intention to update sex discrimination regulations for non-construction contractors by May, and then pushed the date back to September, only to push that item off again.
Again, the OFCCP’s failure to deliver the proposed rules in these two areas appears to be caused by the President’s issuance of other Executive Orders and memoranda directing the OFCCP to implement regulations within specific timeframes, rather than a change of heart on the OFCCP’s part. The OFCCP’s continued commitment to addressing issues of systemic discrimination against women and minorities can be seen in the settlements it procured in 2014.
The settlements from the past year show that the OFCCP continues to be aggressive in its enforcement efforts and continues to focus on issues of systemic discrimination against women and minorities. As you can see, however, the OFCCP clearly does not – and cannot – work on its own. It acts in direct response to the pronouncements, directives and actions of our President. Stay tuned for Part III of this post, where we discuss what this may mean in 2015 and beyond.
For more information, contact Ahmed Younies at (714) 426-2918, x. 1 or [email protected].