OFCCP’s Mega Construction Project Program: OFCCP Continues Its Focus on the Construction Industry

As part of the U.S. Department of Labor’s Office of Federal Contract Compliance Programs’ (OFCCP) continued focus on the construction industry amid the Biden administration’s infrastructure push, the agency is homing in on major construction projects funded by the 2021 Bipartisan Infrastructure Law (BIL).

Quick Hits

• OFCCP unveiled a list of 12 construction projects to be part of its 2023 Mega Construction Project Program.
• As part of the program, OFCCP will provide “compliance assistance” to federal contractors and subcontractors to help them meet their equal employment opportunity and affirmative action compliance obligations.
• The program applies to designated megaprojects valued at $35 million or more, are funded at least partially by federal dollars, and will last more than one year.

Mega Construction Projects Program

OFCCP released a Corporate Scheduling Announcement List (CSAL) on March 21, 2023, designating 12 large construction projects, or “megaprojects,” to be part of its Mega Construction Project (Megaproject) Program. A CSAL is typically a courtesy notification to establishments that they will be subject to an OFCCP compliance evaluation, but the megaprojects list currently differs in that the megaprojects program will provide proactive “compliance assistance” to contractors and subcontractors to help them meet their nondiscrimination and affirmative action obligations.

This program is not necessarily new within OFCCP, but participation has been voluntary in the past. With the significant influx of federal dollars to the construction industry, OFCCP has adjusted its expectations of and participation with this program by no longer making it voluntary and publishing guidance materials on its website.

OFCCP has made clear it wants to address barriers within the construction industry, and designed the current program to promote and advance equal opportunity for underrepresented communities. This will be accomplished by a joint effort among the funding agency, prime contractor, and any subcontractors.

Under the program, OFCCP will provide compliance assistance from the earliest stages of the project, even before work on the project commences, including assistance with engaging stakeholders to remove barriers in hiring and promoting recruitment of a diverse pool of qualified workers from underrepresented groups. Specifically, under the program, OFCCP will:

• Conduct outreach and “engage with prime contractors to regularly convene a broad range of stakeholders” in equal employment opportunity (EEO) committees.
• Provide “ongoing compliance assistance at the pre-bid and post-bid stage to prime contractors and subcontractors on their nondiscrimination and affirmative action obligations.”
• Evaluate “contractors’ efforts to recruit and utilize talent from underrepresented backgrounds and to promote contractor compliance with anti-discrimination and affirmative action requirements.”
• Promote “awareness of eligibility for Indian preferences where projects are located on or near Indian reservations and foster outreach to workers in these communities.”

The agency has put specific emphasis on equal employment (EEO) committees. These committees work to “recruit and remove barriers to employment for applicants from underrepresented communities.” The EEO committees must be comprised of, but not limited to: “the project funding agency, prime contractor, subcontractors, unions, apprenticeship and pre-apprenticeship programs, American Job Centers, worker centers, community colleges, Tribal Employment Rights Offices, Women’s Apprenticeship and Non-Traditional Occupation grantees, and federal, state, and local government agencies.” In a recent April 2023 webinar about the Megaproject Program, OFCCP spent significant time discussing the EEO committees and noted that the program’s success has a clear and direct connection to the EEO committees.

OFCCP has also stated that compliance assistance is intended to be more than just facilitating outreach or education, but includes assistance with everything concerning construction contractor’s regulatory obligations. This includes compliance with Executive Order 11246 (through the 16 affirmative action steps), as well as compliance with Section 503 of the Rehabilitation Act of 1973 and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974.  As part of OFCCP’s Mega Construction Project Programs Toolkit, the agency published a guide titled “Mega Construction Project Program Sixteen Affirmative Action Steps” that summarizes these steps (broken down into five overarching categories: Recruitment Practices, Training, Equal Employment Opportunity Policy and Implementation, Personnel Operations, and Contracting Activity), and offers examples of best practices for complying with regulatory obligations.

The Megaprojects Program list comes as OFCCP has sought a $40 million increase in funding as part of the DOL’s request from the federal government budget for Fiscal Year 2024, in part to support compliance assistance and oversight of large construction projects funded under BIL and other federal infrastructure laws.  The Megaprojects Program also will continue under the direction of a new acting OFCCP Director, following the departure of former Director Jenny Yang on March 31, 2023.

Next Steps

Federal contractors and subcontractors who may be part of these megaprojects, or that are thinking of bidding on projects not yet awarded, may want to consider how OFCCP’s involvement could affect their operations and/or how best to leverage the agency’s assistance. All construction contractors, whether part of the megaproject program or not, may also want to more broadly review how they are currently meeting all nondiscrimination and affirmative action obligations and consult OFCCP’s online resources for more information or to address any questions.

Ogletree Deakins’ Affirmative Action and OFCCP Compliance Practice Group will continue to monitor developments with respect to these and other regulatory developments and will post updates on the Affirmative Action / OFCCP blog. Important information for employers is also available via the firm’s webinar and podcast programs.