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:
Among the most important information that OFCCP provides in the answers to the new FAQs are the following points:
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.