Beyond the OSHA ETS and CMS Rule: What’s Up With Biden’s Executive Orders?

The U.S. Occupational Safety and Health Administration’s (OSHA) COVID-19 Vaccination and Testing Emergency Testing Standard (ETS) met its demise at the Supreme Court of the United States on January 13, 2022. That same day, the Court allowed a vaccine rule promulgated by the Centers for Medicare & Medicaid Services (CMS) to enforce its healthcare interim final rule. But what’s the status of Executive Orders (EO) 14042 and 14043, which requires certain federal contractors and all executive-agency federal employees to comply with workplace safety rules, including vaccinations? Here’s an update.

EEOC Tentatively Sets Significantly Shortened 2021 EEO-1 Filing Season

The U.S. Equal Employment Opportunity Commission (EEOC) recently posted information on the EEO-1 landing page stating that the 2021 EEO-1 filing platform is tentatively scheduled to open on April 12, 2022, with the filing deadline tentatively set for May 17, 2022. This approximately four-week filing period is significantly shorter than the length of time provided for recent EEO-1 filing periods.

Executive Order 14042 Is Preliminarily Enjoined Nationwide: The Third Domino Falls

Like the Occupational Safety and Health Administration’s (OSHA) emergency temporary standard (ETS) and the Centers for Medicare and Medicaid Services’ (CMS) healthcare rule, Executive Order (EO) 14042 (including its related task force guidance, answers to frequently asked questions, and interim contract clause) has been preliminarily enjoined nationwide.

OFCCP Announces Much Anticipated Details About Its New Contractor Portal

As we reported earlier this year, on August 31, 2021, the Office of Management and Budget (OMB) approved the new system that the Office of Federal Contract Compliance Programs (OFCCP) developed for federal contractors to submit affirmative action programs (AAPs). The new system is designed to provide covered federal contractors a method of entering, tracking, and submitting AAPs for review by OFCCP.

President Biden Signs Executive Order Requiring COVID-19 Vaccine for Federal Government Contract Workers

To ensure “that the parties that contract with the Federal Government provide adequate COVID-19 safeguards to their workers performing on or in connection with a Federal Government contract,” President Biden has issued yet another executive order (EO) mandating that some federal contractors and subcontractors comply with Guidance published by the Safer Federal Workforce Task Force.

OFCCP Publishes Fiscal Year 2021 Corporate Scheduling Announcement List for Construction Contractors

On September 1, 2021, the Office of Federal Contract Compliance Programs (OFCCP) published its Corporate Scheduling Announcement List (CSAL) identifying 400 construction federal contractors and federally assisted contractors and subcontractors for fiscal year 2021 (FY 2021), which runs from October 1, 2021, through September 30, 2022.

OFCCP’s Significant Changes for Federal Contractors: AAP Verification Approval and Review of EEO-1 Pay Data

At long last, on August 31, 2021, the Office of Management and Budget (OMB) approved the new system that the Office of Federal Contract Compliance Programs (OFCCP) developed for federal contractors to submit affirmative action programs (AAPs). The Affirmative Action Program Verification Interface (AAP-VI) is designed to provide covered federal contractors a method of entering, tracking, and submitting AAPs for review by OFCCP.

EEOC Extends Filing Deadline for EEO-1 Reports to October 25, 2021

On August 18, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) announced that the prior August 23, 2021, EEO-1 filing deadline for the 2019 and 2020 EEO-1 reports has been moved to October 25, 2021. The EEOC cited the “continuing impact of the pandemic on business operations” as the justification for this two-month extension of the earlier deadline.

DOL Proposes New Rule to Establish Minimum Wage Standards for Federal Contractors

On July 22, 2021, the U.S. Department of Labor (DOL) published a notice of proposed rulemaking to outline the standards and procedures that it will use to administer President Joe Biden’s Executive Order 14026, which he signed on April 27, 2021. Executive Order 14026 proposed an increase to the minimum wage for workers performing work on federal contracts to $15 per hour beginning January 30, 2022. The proposed rule applies only to federal contractors. It builds upon Executive Order 13658 signed by then-president Barack Obama that established a minimum wage of $10.10 for federal contractors with annual increases for inflation. The current rate is $10.95 per hour; the minimum wage for tipped federal contract workers is $7.65 per hour. Below is a brief summary of the scope of the DOL’s proposed rule and changes, if finalized.

EEO-1 Filing Platform: More Changes for Acquisitions, Spinoffs, and Mergers

The U.S. Equal Employment Opportunity Commission (EEOC) recently announced that it is loosening the requirement on companies to provide notice to the federal agency of acquisitions, mergers, and spinoffs. By way of background, in addition to requiring the submission and certification of two years of EEO-1 reports, the EEOC had created a new filing platform for the 2019 and 2020 EEO-1 filings, which are due by August 23, 2021. The transition to the new platform and the requirement to file two years of EEO-1 reports has resulted in a rocky EEO-1 filing cycle. As a continued sign of these difficulties, the EEOC implemented a major change to the procedure for handling mergers, acquisitions, and spinoffs for EEO-1 reporting.

OFCCP Publishes Latest Corporate Scheduling Announcement List (CSAL)

On July 1, 2021, the Office of Federal Contract Compliance Programs (OFCCP) published a Corporate Scheduling Announcement List (CSAL identifying 750 Supply and Service establishment-based full compliance evaluations, Corporate Management Compliance Evaluations, Functional Affirmative Action Program (FAAP) Reviews and University Reviews.  OFCCP is not required by law to publish the CSAL, and the CSAL is distinct from the scheduling letter, which is the Office of Management Budget’s (OMB) approved letter “sent to an establishment to start the compliance evaluation process.”

EEOC Extends Deadline to File EEO-1 Reports to August 23, 2021

On June 28, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) announced that it is extending the July 19, 2021, deadline to submit and certify 2019 and 2020 EEO-1 Component 1 reports to Monday, August 23, 2021. The EEOC still “encourage[s] eligible employers to file the required EEO-1 Component 1 report(s) as soon as possible.

Mandatory Vaccination Policy Lawsuit Update: Nurses Take a Shot Against Hospital, But Judge Jabs Back

Many workplace leaders have been wondering, “Can we require employees to get the COVID-19 vaccine as a condition of employment?” According to a recent Ogletree Deakins benchmarking survey, most employers are not ready to implement mandatory vaccination policies, and 87.9 percent of employers reported that they currently do not plan to require workers to get the vaccine. On the other end of the spectrum, 7.6 percent of respondents have implemented (or are planning to implement) a vaccination mandate. The rest have been undecided, but a recent court opinion on the legality of such mandatory policies may shift some employers’ feelings about which direction they should go and when.

Many Federal Contractors Required to Increase Minimum Wage for Workers by 2022: Highlights of the Biden Administration’s New Executive Order

On April 27, 2021, President Joe Biden signed a new executive order (EO) requiring federal contractors and subcontractors to pay a $15.00 minimum wage to the thousands of workers who are working on or in connection with federal contracts. The new EO, titled “Executive Order on Increasing the Minimum Wage for Federal Contractors,” requires contractors to implement the higher minimum wage requirements by early 2022.

2019 and 2020 EEO-1 Component 1 Filing Site Is Now Open

After the U.S. Equal Employment Opportunity Commission (EEOC) delayed the collection of 2019 EEO-1 Component 1 data, April 26, 2021, now marks the opening of the 2019 and 2020 EEO-1 Component 1 filing site. The EEOC had extended the data collection period from the usual 10 weeks to 12 weeks, resulting in a July 19, 2021, filing deadline.

The Top 10 Labor and Employment Issues Keeping Retailers Up at Night in 2021

Now that the inauguration has passed and the Biden administration has begun its work, it is a good time for retailers to take stock of the labor and employment issues that are likely to assume prominence in 2021, and to consider preparing to meet the challenges each of these issues pose. In no particular order, below are the top 10 issues that are likely to keep retail employers up at night in 2021.

Biden Administration Revokes Diversity Training Restrictions and Takes Further Actions to Address Diverse Groups

President Joseph R. Biden Jr.’s flurry of executive actions upon his inauguration into office signals diversity, equity, and inclusion (DE&I) as a significant area of focus for the administration. As of January 26, 2021, President Biden has signed a total of more than 40 executive orders and actions aimed at addressing and reversing some of the most controversial orders of the prior administration, including a number of actions addressing DE&I matters. One of these—Advancing Racial Equity and Support for Underserved Communities Through the Federal Government (Executive Order (EO) 13985)—includes the much-anticipated revocation of EO 13950’s ban on diversity training content for federal agencies, contractors, and grant recipients.

OFCCP Director Update: Yang Replaces Leen as the New Director

According to the Office of Federal Contract Compliance website’s leadership team page, Jenny Yang has replaced Craig Leen as director of the agency. Yang previously served on the U.S. Equal Employment Opportunity Commission (EEOC) from 2013 to 2018 and served as a commissioner, vice chair, and chair for the agency (the latter from 2014 to 2017). Yang spearheaded the EEOC’s drive to collect pay data from private employers as part of the EEO-1 report.

EEO-1 Filers Must Wait a Little Longer—EEOC Announces Filing Platform Will Not Open Until April 2021

The U.S. Equal Employment Opportunity Commission (EEOC) issued a press release on January 12, 2021, notifying EEO-1 filers that the EEO-1 filing platform will not open until April 2021. This is of particular interest for employers because the EEOC delayed the 2019 EEO-1 filings, which would normally have been due in March 2020, due to the COVID-19 pandemic—meaning that both the 2019 and 2020 EEO-1 filings will be due this year.

Race and Sex Stereotyping Executive Order Subject to Preliminary Injunction

Some anticipate that President-elect Joseph Biden will revoke the Trump administration’s Executive Order (EO) 13950 that restricts the content of certain diversity-related workplace trainings. On December 22, 2020, the United States District Court for the Northern District of California issued a nationwide preliminary injunction in the case of Santa Cruz Lesbian and Gay Community Center d/b/a The Diversity Center of Santa Cruz v. Trump, holding that the plaintiffs had demonstrated (among other things) a sufficient likelihood of success on their claims that EO 13950 is unconstitutional on its face. The order, which went into effect immediately and on a nationwide basis, allows private federal contractors and federal grant recipients to conduct workplace training programs and related activities without facing penalties for “stereotyping” or “scapegoating” under EO 13950. While the injunction does not impact trainings provided to federal employees, on December 22, 2020, a group of U.S. Department of Justice (DOJ) employees circulated a letter calling for an official investigation into EO 13950 and related executive branch actions targeting diversity-and-inclusion programs.

OFCCP’s Fiscal Year 2020 Non-Financial Conciliation Agreements: A Review of the Past to Prepare for the Present and Future

Federal contractors and subcontractors have numerous affirmative action obligations and only so much time each day to devote to compliance. As a result, some requirements may tend to fall by the wayside as contractors focus on the more critical issues of ensuring equal employment opportunities in matters such as hiring, promotions, and pay. Even the smallest of the technical regulatory obligations, however, are important and serve a purpose—and, in fact, they can significantly enhance contractors’ affirmative action efforts by requiring regular, critical review and analysis of personnel practices.

How Is OFCCP Responding to EO 13950?

Since September 22, 2020, when President Donald J. Trump signed an executive order (EO) titled “Executive Order on Combating Race and Sex Stereotyping,” the Office of Federal Contractor Compliance Programs (OFCCP) rolled out several sources to provide guidance to federal contractors and subcontractors and other stakeholders on what to expect next.