Last week, the Department of Labor (DOL) and the Equal Employment Opportunity Commission (EEOC) released their respective regulatory agendas for Spring 2020. The items on the agendas include rules in various stages of enactment, i.e. pre-rules, proposed rules (NPRMs), and final rules.
Of note on DOL’s agenda is the NPRM for its subdivision, Office of Federal Contract Compliance Programs (OFCCP), on affirmative action obligations for contractors. For years, a small number of contractors have opted to develop their affirmative action plans (AAPs) according to a functional structure (FAAP), as opposed to the traditional method of developing AAPs by physical locations. The recently released NPRM seeks to clarify how contractors may develop their AAPs, and will codify the FAAP program that is currently approved by the Office of Management and Budget (OMB).
OFCCP’s seeming acceptance (if not encouragement) of FAAPs is not surprising given recent events. The COVID-19 pandemic has left many businesses operating heavily or even fully remote, with some physical locations closing permanently. It appears the agency’s aim is to remind contractors of the flexibility afforded by FAAPs by formally acknowledging the existing OMB program. It will be interesting to see how many contractors make the switch to a FAAP structure, and whether these changes will be permanent.
In addition, OFCCP’s agenda includes a final rule on affirmative action obligations for contractors covered under TRICARE. This ruling is covered in a separate blog post here.
In a related vein, the regulatory agenda for DOL’s Wage and Hour Division (WHD) includes a final rule on paid leave under the Families First Coronavirus Response Act, as well as a pre-rule on amending the Family and Medical Leave Act (FMLA) of 1993. Both regulations seek to afford greater protections to workers under the FMLA. Rulings surrounding the FMLA are in line with the current pandemic, as an increasing number of employees may need to take FMLA leave to care for a loved one who has contracted the virus.
Lastly, EEOC has released its own regulatory agenda, the most noteworthy being a pre-rule on providing for a new pay data collection. Similar information collections have been instated and rescinded numerous times over the years, the most recent of which being the Component 2 pay data collection last year. The current pre-rule seeks to reinstate a pay survey, with the rule taking effect in September of 2020. As with previous rulings, the agency plans to seek public comment on this matter.
If prior pay data collections are any indication as to what we can expect, it is likely that EEOC’s pre-rule will be met with mixed responses. On one hand, civil rights organizations will be pleased to hear of the new data collection effort, and will push for the ruling to be enacted. However, the agency can expect to receive backlash from the contractor community over the burden imposed by the collection, and questions regarding the usefulness of the data. In fact, a study funded by the EEOC itself is currently underway, with the goal of evaluating the “quality and utility” of the prior Component 2 data collection.
DCI will continue to post updates regarding the regulatory agenda here on our blog.
By Lily Kerr, HR Analyst at DCI Consulting Group
