TAKE HER TO SEA, DIRECTOR SHIU: NEW OFCCP REGULATIONS ON THE HORIZON

OFCCP is charging full steam ahead as their semiannual regulatory agenda forecasts the imminent publication of four Notices of Proposed Rulemaking (NPRMs) which are tremendously important to the contractor community. In their agenda, issued to the public on May 23, OFCCP plans to publish NPRMs to implement President President Obama’s Executive Order (EO) 13665 and the President’s compensation data collection directive, Affirmative Action requirements for construction contractors and subcontractors, and the Sex Discrimination Guidelines.

Executive Order 13665 and Presidential Memorandum on Pay Data Collection

In our previous Alert, we discussed the federal rule-making process and the fact that OFCCP submitted the NPRM for the Pay Data Collection Tool to OMB for initial review on May 5, 2014. According to the agenda, OFCCP plans to have the NPRM for Executive Order (EO) 13665 and the related Presidential Memorandum approved and published in the Federal Register by August and September 2014, respectively.  The regulations surrounding EO 13665 and the Memorandum would prohibit federal contractors from retaliating against employees who discuss their wages with each other AND require federal contractors to submit summary personnel compensation data by race and sex on an annual basis.

Sex Discrimination Guidelines 

Also by September 2014, OFCCP aims to publish a NPRM that would revise the 30-year-old Sex Discrimination Guidelines (41 CFR 60-20). According to the agency, this update will “create sex discrimination regulations that reflect the current state of the law in this area.”

AAP Requirements for Construction Contractors and Subcontractors

OFCCP has set a target of January 2015 to have a NPRM published that would redefine the affirmative action plan requirements for federal and federally assisted construction contractors and subcontractors. In order to ensure construction contractors are addressing areas of underutilization for women and minorities, the NPRM will propose rules in which construction contractors and subcontractors employ a new method for establishing affirmative action placement goals as well as other updates to the current affirmative action requirements that reflect today’s labor market in the construction industry.

The Journey Ahead

Remember that after a proposed rule is published in the Federal Register for the first time, there is a public comment period (typically 60 days) during which contractors can provide feedback to the agency concerning the content and estimated time burden of the proposed rule. Following the comment period, OFCCP will redraft the rule and send it to OMB for a second review. If OMB approves, then the final regulations will be published and become effective shortly thereafter. The passage through these waters may seem precarious and a bit obscure, but we will serve as your outrigger to offer stabilization and guidance along the way. Keep a look out.

 

By Jeffrey Henderson, M.P.S, Analyst and David Morgan, M.S., Senior Consultant at DCI Consulting Group

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