OFCCP and other U.S. Department of Labor (DOL) agencies published their Fall 2010 regulatory agendas on December 20, 2010. The agenda is published twice a year and includes planned rulemaking actions for the agency for the next 6-12 months.
OFCCP included four items in the Fall 2010 agenda:
This will be a Notice of Proposed Rulemaking (NPRM) updating the AAP regulations for covered veterans, requiring contractors to "conduct more substantive analyses of recruitment and placement actions taken under VEVRAA and would require the use of numerical targets to measure the effectiveness of affirmative action efforts." This NPRM is carried over from the Spring 2010 agenda (which listed an original target date of December 2010), and now has a target publication date of January 2011, with the public comment period to end in April 2011.
Non Discrimination In Compensation: Compensation Data Collection Tool
This will be an Advanced Notice of Proposed Rulemaking (ANPRM) "will seek input from stakeholders on issues relating to the scope, content, and format" of a new data collection tool that contractors would be required to use, similar to the previous Equal Opportunity Survey. OFCCP is hoping to use the tool to identify contractors that are likely to violate Executive Order 11246 with regard to compensation, and is considering using the tool to "conduct establishment-specific, contractor-wide, and industry-wide analyses." This ANPRM is targeted for publication in February 2011.
Construction Contractor Affirmative Action Requirements
This will be an NPRM updating the regulations at 41 CFR 60-4, covering AAPs for construction contractors. The NPRM is slated for publication in July 2011.
This NPRM follows the ANPRM that was published on July 23, 2010, seeking input on updating the AAP regulations for individuals with a disability under Section 503 of the Rehabilitation Act of 1973. In the agenda listing, OFCCP states that the upcoming NPRM would "amend the regulations to require that Federal contractors and subcontractors increase linkages and conduct more substantive analyses of recruitment and placement actions taken under section 503" and "make revisions to recordkeeping requirements." Conspicuously absent from that description- given the extensive language in July's ANPRM and the comparable description of the VEVRAA NPRM updates above- is any reference to numerical targets or quantitative analyses involving availability data for persons with a disability. This omission, paired with recent news that the upcoming 2010 Census Special EEO File apparently will not contain disability data from the American Community Survey (ACS), may mean that the proposed "utilization analysis" AAP requirement for employees with a disability may not be part of the proposed updates to the Section 503 regulations when they are released. This NPRM is targeted for publication in August 2011.
OFCCP will be conducting a live web chat to discuss the regulatory agenda and answer questions from the public on Friday, January 7, 2011 at 1:30 PM EST.
By Fred Satterwhite, Senior Consultant, DCI Consulting Group