By: Bill Osterndorf and Evan Szarenski
The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has published new Frequently Asked Questions (FAQs) for federal contractors involved in construction projects. The new FAQs are meant to provide insight into OFCCP’s approach to compliance reviews for federal construction contractors. OFCCP’s website states that its FAQs on construction were last updated on December 4, 2023.
OFCCP has provided no notification as to which FAQs are new. Based on a comparison to previous FAQs, it appears that the following are new FAQs:
- FAQ 6 on Application of Legal Authorities
- FAQ 7 on Application of Legal Authorities
- FAQ 8 on Application of Legal Authorities
- FAQ 9 on Application of Legal Authorities
- FAQ 4 on Investigating Discrimination (Revised FAQ)
- FAQ 1 on Compliance Reviews
- FAQ 2 on Compliance Reviews
- FAQ 3 on Compliance Reviews
- FAQ 6 on Compliance Reviews
- FAQ 8 on Compliance Reviews
- FAQ 9 on Compliance Reviews
- FAQ 11 on Compliance Reviews
- FAQ 13 on Compliance Reviews
- FAQ 4 on Scheduling
Among the most important information that OFCCP provides in the answers to the new FAQs are the following points:
- If a federal contractor has a contract that includes both construction and nonconstruction work, the employer “must comply with the affirmative action obligations applicable to the predominant part of the work, or if the contract is divided into parts, the affirmative action obligations applicable to each portion.” (See FAQ 8 on Application of Legal Authorities.)
- Construction contractors and subcontractors have an obligation to carefully monitor and assess compensation policies and practices as well as selection policies and practices. This includes conducting disparity analyses on selection procedures. (See FAQ 4 on Investigating Discrimination, which includes significant revisions from the previous version of this FAQ.)
- Supervisors, Inspectors, and Forepersons are considered to be members of the construction trades for purposes of providing compensation data and personnel activity to OFCCP during a compliance review. (See FAQ 3 and related FAQs on Compliance Reviews.)
FAQs provide OFCCP’s interpretation of the laws and regulations that govern the agency’s actions. However, FAQs do not have the force of law that regulations have. OFCCP has the right to publish, revise or withdraw FAQs at its convenience without prior notice and without input from the public.
DCI’s initial analysis of the recent FAQs suggests that some of these FAQs do not fully conform to the agency’s regulations and other published materials. For example, OFCCP’s suggestion that Supervisors, Inspectors, and Forepersons are members of the construction trades is not supported anywhere in its regulations or in other interpretive guidance. There are other FAQs that seem inconsistent with the federal affirmative action regulations.
DCI will be doing additional analysis of OFCCP’s new FAQs and will be releasing a white paper on some of the issues that are surfacing in regard to OFCCP’s interpretation of its construction regulations.
