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In our last two posts, we examined key actions taken by the OFCCP in 2014 through the lens of President Obama’s ambitious agenda. While some OFCCP actions have reflected Mr. Obama’s priorities, others have actually resulted directly from Executive Orders. Between the OFCCP’s actions, Mr. Obama’s Executive Orders and statements of his priorities, what can we project for the federal contractor community in 2015 and beyond?
Based on the President’s and the OFCCP’s focus on veterans and individuals with disabilities (particularly regarding utilization goals and hiring benchmarks, and the new, more detailed requirements in the Scheduling Letter’s Itemized Listing), we can expect in 2015 and beyond to see greater focus during compliance evaluations on recruiting and outreach efforts. If you are a federal contractor, this focus will either compel you to step up data collection and retention with respect to outreach, recruiting and hiring of protected veterans and Individuals with Disabilities (IWDs) or you will be vulnerable during Compliance Evaluations. You will need to be equally vigilant about documenting the reasons for any hiring decisions with respect to protected veterans and Individuals with Disabilities.
We have heard, and a few of our posts have expounded on, the President’s (and consequently the OFCCP’s) ambitions to ensure pay equity for women. While both the President and the OFCCP have also expressed intentions to effectuate an overhaul of sex discrimination guidelines for contractors, they have not actually done anything–yet. The President only has two years left to complete what he set out to do. It is likely that he–and consequently the OFCCP–will push for this next piece, which essentially goes hand in hand with the pay equity. In fact, OFCCP cases against contractors involving hiring discrimination against women and in favor of men in certain higher paying positions frame the issues as sex discrimination and pay discrimination. What might this mean in 2015 and beyond? For starters, it is likely that the OFCCP will pay closer attention to the statistical analyses in Affirmative Action Plans implemented in accordance with E.O. 11246. Even though the rule requiring contractors to submit pay data based on gender and race is not yet finalized, you may want to pay particular attention to ensuring that your data collection and retention policies comply with the new requirements of the Itemized Listing–because the OFCCP has shown that it will certainly be doing so. The new minimum wage, while it will only go into effect for new or renewed contracts, still underscores the President’s and the OFCCP’s focus on compensation and pay equity.
New anti-discrimination provisions regarding workers’ sexual orientation and gender identity go into effect in April. Since these provisions do not require changes to data collection and retention or Affirmative Action Plans, that is not necessarily a reason to expect to get off easy here. Employees can always file a discrimination charge with the OFCCP, which will still trigger an investigation and some type of enforcement activity.
The OFCCP also included updates to regulations that pertain specifically to construction contractors, but to date have done nothing in this area. As with the sex discrimination guidelines, it seems reasonable to expect proposed rules in the near future, before the end of Mr. Obama’s term as President and while the current OFCCP is still in place.
Regarding more general workers’ rights issues, we can also expect to see the OFCCP issue proposed regulations regarding the President’s Fair and Safe Workplaces Executive Order, which we discussed in our previous post. Those regulations, in turn, will likely result in greater focus on pretty much all federal contractors’ employment practices, including without limitation, wage and hour, safety, leave and anti-discrimination laws. In effect, the OFCCP’s jurisdiction is now extended to areas that until now have been the exclusive domain of the Department of Labor Wage and Hour Division, the Occupational Health and Safety Administration, the Equal Employment Opportunity Commission and their state counterparts. If you are a federal contractor or subcontractor, you could therefore end up answering to more than one federal government agency for the same alleged violations.
Conclusion: The bottom line is that if contractors felt that the OFCCP was looking over their shoulder before, they can expect to have more reason to feel that way going forward. Beyond that, however, if you want to know what to expect from the OFCCP, watch the President. As we have seen, and as our previous two posts indicate, the OFCCP’s agenda and activities do not occur in a vacuum; they come into being in response to the President’s priorities and directives.