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.

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.

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.

The New ‘Race and Sex Stereotyping’ Executive Order Affecting Federal Contractors

On September 22, 2020, President Donald Trump signed an executive order titled “Executive Order on Combating Race and Sex Stereotyping.” The executive order follows a September 4, 2020, memorandum from Russell Vought, director of the Office of Management and Budget, and introduces requirements for government contractors conducting diversity and inclusion (D&I) trainings. It is clear from the order that covered contracts, subcontracts, and grants with the U.S. federal government must control for specific language related to workplace trainings, but the order otherwise lacks guidance about  changes covered contractors must make when training on D&I issues.

Addressing a Gap: OFCCP Will Require Verification of Written AAP Compliance

On August 24, 2018, the U.S. Department of Labor’s (DOL) Office of Federal Contract Compliance Programs (OFCCP) issued three directives, including Directive 2018-07, Affirmative Action Program Verification Initiative, which aims at ensuring covered contractors are annually preparing and implementing written affirmative action programs (AAPs). This directive could have a wide-ranging impact on covered contractors, especially those that encounter challenges in preparing written AAPs annually.

Key Personnel Changes at OFCCP

With any change in presidential administration, it is typical to see turnover of the highest-ranking personnel in a federal agency. Those transitions appear to be occurring rapidly at the Office of Federal Contract Compliance Programs (OFCCP), as several key OFCCP staffers have quietly left the agency or announced an imminent departure within the last month

More Transparency at the OFCCP: New Protocol to Standardize Use of Predetermination Notices

In a move toward greater transparency, the Office of Federal Contract Compliance Programs (OFCCP) recently issued Directive 2018-01 affecting the use of predetermination notices (PDNs) in discrimination cases. OFCCP uses PDN letters to inform contractors of preliminary findings of employment discrimination.