On October 11, 2019, the Office of Federal Contract Compliance Programs (OFCCP) published to its website the long-awaited Educational Institutions Technical Assistance Guide (TAG). According to OFCCP, the 80-page TAG, “provides a general overview of contractor obligations specific to Educational Institutions under the equal employment opportunity laws enforced by OFCCP” and can be used “as a self-assessment tool” for educational institutions “to create, review, and update their affirmative action programs.” In addition to chapters on OFCCP’s mission and equal employment obligations, the TAG also contains separate guidance for instructional and non-instructional staff in the chapters titled “Affirmative Action Programs” and “What to Expect During a Compliance Evaluation.” It also addresses the specialty areas of athletics, medical, and online institutions.
The release of the TAG comes after months of OFCCP’s continuous focus on providing guidance to higher educational institutions. Earlier this year, OFCCP issued its inaugural opinion letter that concluded that Pell Grants do not qualify as government contracts and would not alone trigger affirmative action obligations for higher education institutions. OFCCP also recently released a new set of answers to frequently asked questions (FAQs) offering guidance on determining establishments for “campus-like” settings and issued Directive 2019-05 announcing it would limit compliance evaluations of educational institutions to non-student employees. The directive acknowledges the difficulty for educational institutions in determining student workers meet the definition of “employee” and whether student workers should be included in affirmative action programs (AAPs). While relieving higher educational institutions from tracking personnel activity and including student workers in AAPs for compliance purposes, OFCCP clarified that it would still accept and consider complaints from student workers and will make a determination on the employment status of those student workers.
OFCCP will likely cover all of these topics and more at its Academic Institutions Town Hall scheduled for October 23, 2019, in Washington, D.C.
Ogletree Deakins’ Affirmative Action and OFCCP Compliance Practice Group will report on any further developments with regard to OFCCP’s guidance relating to technical assistance and enforcement of the obligations of higher education institutions on the firm’s Affirmative Action/OFCCP blog.