Federal Contractors, Heads Up! New Audits, New Burdens, Less Time to Comply

On August 25, 2023, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) issued an Office of Management and Budget-approved, revised Supply and Service Scheduling Letter and Itemized Listing, which is effective through August 31, 2026. OFCCP also issued a new round of Corporate Scheduling Announcement Letters for 1,000 federal contractors two weeks later on September 8, 2023.

The Supreme Court’s Affirmative Action Ruling: 6 Takeaways for Government Contractors

How does the Supreme Court of the United States’ ban on affirmative action in higher education affect government contractors? In short—it doesn’t. Covered federal contractors and subcontractors must continue to comply with their regulatory obligations under Executive Order (EO) 11246, the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA), and Section 503 of the Rehabilitation Act. However, federal contractors can expect that their diversity efforts will receive more scrutiny going forward.

Supreme Court Debates U.S. Government’s Race and Ethnicity Categories: What Employers Need to Know

On June 29, 2023, the Supreme Court of the United States struck down affirmative action in college admissions, leaving employers to wrestle with the implications of the decision for various diversity, equity, and inclusion initiatives. The decision also contained a robust debate over the government’s race and ethnicity categories, which the university respondents used in their admissions processes. Many employers use those same race and ethnicity categories for various government reporting and recordkeeping purposes.

OFCCP’s Last-Minute Portal Guidance Changes

Two days prior to the 2023 contractor portal certification deadline, the Office of Federal Contract Compliance Programs (OFCCP) updated the certification guidance on its contractor portal frequently asked questions (FAQ) page. The agency did not make a public announcement about the changes, other than changing the “last updated” date at the bottom of the FAQs to June 27, 2023.

OFCCP’s New CSAL Identifies 250 Construction Contractors and Subcontractors for Compliance Reviews

On June 5, 2023, the Office of Federal Contract Compliance Programs (OFCCP) published a Corporate Scheduling Announcement List (CSAL) identifying 250 federal and federally assisted construction contractors and subcontractors. OFCCP’s CSAL is a “courtesy notification” to contractors, with a compliance review beginning only upon the establishment location’s receipt of a scheduling letter.

Majority of States Have Legalized Marijuana, but OSHA’s Post-Incident Drug-Testing Guidance Hasn’t Changed

Although marijuana has been legalized for medicinal or recreational use, or both, in thirty-eight states, it is still illegal under federal law, and drug testing is required to comply with a number of federal laws, including the Motor Carrier Safety Act. In addition, the Occupational Safety and Health Administration does not prohibit workplace safety incentive programs or post-incident drug testing.

Mission Accomplished … White House Declares an End to the Pandemic and the CMS Vaccine Mandate

On May 1, 2023, the Biden administration announced that it would be ending all of its various COVID-19 vaccination requirements on May 11, 2023, the same date as the COVID-19 national emergency and public health emergency will end, according to the U.S. Centers for Disease Control and Prevention (CDC)). The U.S. Department of Health and Human Services (HHS) has begun the process to terminate the Centers for Medicare and Medicaid Services’s (CMS) interim final rule requiring CMS-certified healthcare facilities to implement and enforce a policy that all covered staff within their covered facilities be vaccinated against COVID-19.

OFCCP’s New February 17 Deadline for Asserting Objections to EEO-1 Data Release

The Office of Federal Contract Compliance Programs (OFCCP) posted an updated final notice of the agency’s impending release of EEO-1 Type 2 (Consolidated) reports for 2016–2020 to all entities that may be subject to the Center for Investigative Reporting’s Freedom of Information Act (FOIA) request. The deadline for contractors appearing on the non-objectors list to respond to OFCCP has been extended from February 7, 2023, to 11:59 p.m. EST on February 17, 2023.

Check the List: Is OFCCP Ready to Release Your Company’s EEO-1 Report?

In response to a Freedom of Information Act (FOIA) request from the Center for Investigative Reporting, the Office of Federal Contract Compliance Programs (OFCCP) is preparing to release the 2016-2020 EEO-1 Type 2 (Consolidated) reports of federal contractors that did not previously object to disclosure. OFCCP’s List of Non-Objectors identifies more than 13,000 entities whose EEO-1 reports OFCCP plans to release in response to the FOIA request.

Fifth Circuit Affirms Preliminary Injunction Blocking Federal Contractor COVID-19 Vaccine Mandate

On December 19, 2022, a panel for the U.S. Court of Appeals for the Fifth Circuit affirmed a preliminary injunction blocking enforcement of President Joe Biden’s COVID-19 federal contractor vaccine mandate. The 2-1 panel decision in State of Louisiana v. Biden found that to allow the mandate would result in an “enormous,” “transformative,” and “truly unprecedented” expansion of the powers of the president without clear authorization from Congress.

DOL Notifies Government Contractors That It Intends to Disclose EEO-1 Data for Nonobjectors

We recently reported on a Freedom of Information Act (FOIA) request covering government contractors’ 2016–2020 Type 2 EEO-1 reports announced in the Federal Register, pursuant to which contractors had until October 19, 2022, to object to the disclosure of their data. The requesting investigative reporter and nonprofit news organization subsequently sued the U.S. Department of Labor (DOL) under FOIA, alleging that the DOL’s Office of Federal Contract Compliance Programs (OFCCP) violated FOIA in response to the FOIA requests. OFCCP began contacting companies for which it claims to have no record of objections to the FOIA request, via email on November 22, 2022.

DOL Sued Over FOIA Request for Contractors’ EEO-1 Reports

On November 15, 2022, an investigative reporter and a nonprofit news organization sued the U.S. Department of Labor (DOL) under the Freedom of Information Act (FOIA). The investigative reporter previously submitted multiple FOIA requests for federal contractors’ and first-tier subcontractors’ Type 2 Consolidated EEO-1 Report data to the DOL’s Office of Federal Contract Compliance Programs (OFCCP).

Federal Contractor Vaccine Mandate: Eleventh Circuit Partially Vacates Preliminary Injunction

On August 26, 2022, the U.S. Court of Appeals for the Eleventh Circuit narrowed the scope of a nationwide injunction that had barred enforcement of President Joe Biden’s COVID-19 federal contractor vaccine mandate. In December 2021, the U.S. District Court for the Southern District of Georgia had issued a nationwide injunction, finding that President Biden had likely exceeded his authority under the Federal Property and Administrative Services Act when he issued Executive Order 14042.

OFCCP Launching Another Online Portal, This Time for Construction Contractors

On August 22, 2022, the Office of Federal Contract Compliance Programs (OFCCP) announced it will launch a new online platform whereby “contracting officers, contractors, and applicants seeking federal assistance for construction projects (such as a state [Department of Transportation])” can securely upload details about an awarded federal or federally-assisted construction contract or subcontract.

EEO-1 Filing Platform Set to Open on April 12 With Abbreviated Filing Deadline of May 17: What’s the Rush?

Though the 2021 EEO-1 landing page labels the opening and closing dates for the 2021 EEO-1 filing cycle as “tentative,” the U.S. Equal Employment Opportunity Commission (EEOC) has notified prior filers that the 2021 filing platform will “officially open” on April 12, 2022, and close on May 17, 2022.