OFCCP Has an Ambitious Regulatory Agenda

The fall 2021 regulatory agenda for OFCCP outlines several proposed or final regulations. This will make for a busy 2022 if OFCCP sticks to their schedule. These regulations (formally called “rules”) are outlined below with expected action dates for a final rule or notice of proposed rulemaking (NPRM). Rule-specific links are provided below. The full fall regulatory agenda for all executive agencies can be found at https://www.reginfo.gov/public/do/eAgendaMain. The OFCCP items in the regulatory agenda are as follows: 

1. Proposal to Rescind Implementing Legal Requirements Regarding the Equal Opportunity Clause's Religious Exemption Final Rule:  OFCCP has already published a proposal regarding this rescission and the comment period on this proposal ended on December 9, 2021. 
2. Technical Amendments to OFCCP Regulations: Final action expected in February of 2022 regarding thresholds for preparing affirmative action plans for individuals with disabilities and protected veterans. 
3. Notification of Supply and Service Subcontract Awards: NPRM expected in April of 2022 regarding notifications prime contractors would be required to make regarding subcontracts. 
4. Access to Records Regulatory Updates: NPRM expected in Sept of 2022 regarding Freedom of Information Act and other record requests. 
5. Modernizing Affirmative Action Programs, Recordkeeping, and Other Components of the Executive Order 11246 Supply and Service Obligations for Federal Contractors and Subcontractors: NPRM expected in Sept of 2022 regarding various topics including issues concerning gender identity and sexual orientation. 
6. Modification of Procedures to Resolve Potential Employment Discrimination: NPRM expected in Sept of 2022 regarding changes to OFCCP’s November 2020 final rule on resolving findings of employment discrimination.
   

One of the most notable proposals is item 3 above, the notification of supply and service subcontract awards, which would require federal contractors involved in supply and service contracts to provide notice to OFCCP when they award supply and service subcontracts. This information is currently difficult for OFCCP to obtain and would potentially open far more organizations to OFCCP compliance evaluations. 

Another notable proposal is item 5 above. The scope of the changes OFCCP is considering is unclear, but the agency may be evaluating a substantial number of changes. 

The semi-annual regulatory agenda provides insight into OFCCP’s thinking about priorities for the coming months. However, items that appear in a regulatory agenda do not necessarily move forward on the schedule proposed by the agency. There are also times when items appearing in regulatory agendas do not become formal proposals. 

DCI will be digesting each of these in 2022 through a blog series. Stay tuned!  

Authors: Amanda Bowman, Bill Osterndorf