New OFCCP Directive Rolls Back Previous Administration’s Contractor-Friendly CERT Principles

On March 31, 2022, the Office of Federal Contract Compliance Programs (OFCCP) issued its second directive of the Biden administration, Directive 2022-02, titled “Effective Compliance Evaluations and Enforcement.” The policies outlined in the new directive signal the end of the contractor friendly policies of the Trump era and a return to an enforcement heavy compliance regime.

Directive 2022-02 revokes several Trump era directives including Directive 2018-06, Contractor Recognition Program (Aug. 24, 2018); Directive 2018-08, Transparency in OFCCP Compliance Activities (Sept. 19, 2018); Directive 2020-02, Efficiency in Compliance Evaluations (Apr. 17, 2020); and Directive 2021-02, Certainty in OFCCP Policies and Practices (Dec. 11, 2020). These policies were initially developed as a part of the OFCCP’s CERT initiative towards certainty, efficiency, recognition and transparency in compliance.

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OFCCP New Federal Contractor Portal Opened for Required Certification

On March 31, 2022, the Office of Federal Contract Compliance Programs (OFCCP) opened the certification period for its new Federal Contractor Portal (Portal). Supply and service federal contractors and subcontractors (contractors) are required to certify the status of their annual affirmative action plans (AAPs) for each establishment before June 30, 2022.

As previously reported, the OFCCP opened the Portal for registration on February 1, 2022, allowing contractors to visit the site, register their company and validate their information. The OFCCP updated the resource landing page on its web page, which — in addition to a previously provided rollout timeline, user guide and FAQs — now includes additional FAQs addressing certification and registration, how-to videos, a user guide and one-page guides for registration and certification. Contractors are now required to register (if not done previously) and certify compliance.

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Equal Pay Day Heralds New Executive Order and OFCCP Directive

On Equal Pay Day (March 15, 2022), President Biden issued an executive order aimed at advancing the effectiveness in federal contracting by promoting pay equity and transparency in tandem with the U.S. Department of Labor’s Office of Federal Contract Compliance Programs’ (OFCCP) first formal directive (DIR 2022-01) during the Biden administration on pay equity in federal contractors. The directive addresses the OFCCP’s position on obtaining compensation related documents sought during the agency’s audits, which includes pay equity review.

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NLRB’s General Counsel Announces Support for White House Labor Report

On February 10, 2022, the National Labor Relation Board’s (NLRB) General Counsel, Jennifer Abruzzo, issued Memorandum GC 22-03 announcing her agreement with and support of the Biden administration’s Task Force on Worker Organizing and Empowerment (Task Force) February 7, 2022 report. The Task Force was created by executive order in April 2021 to identify ways the executive branch can promote worker organization and collective bargaining through existing policies and programs. The Task Force’s report included recommendations to increase organizing and encourages collaboration between government agencies focused on worker protection. In addition to instructing field offices to adopt the recommendations outlined in the report, Abruzzo’s memorandum details current interagency undertakings and outlines future efforts to strengthen those collaborations.

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OFCCP’s New Federal Contractor Compliance Portal Opens for Registration Only

On February 1, 2021, the Office of Federal Contract Compliance Programs (OFCCP) opened its new Federal Contractor Portal (Portal) for one-time registration and updated its website landing page with a Federal Contractor User Guide and additional FAQsAs previously reported, the OFCCP has implemented an annual affirmative action plan (AAP) certification process, which requires covered federal contractors and subcontractors (contractors) to register for the Portal and then annually certify they are meeting their existing requirement to develop and maintain annual AAPs. At this time, the Portal is open only for registration — it will not open for certification until March 31, 2022. The OFCCP encourages contractors to complete registration by March 30, 2022 to avoid any delays in the certification process.

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The U.S. Department of Labor Announces Final Rule to Increase Minimum Wage for Certain Federal Contractors

On November 22, 2021, the U.S. Department of Labor (DOL) finalized a rule to increase the hourly minimum wage for employees of certain federal contractors beginning January 30, 2022. The final rule implements Executive Order 14026, which President Joe Biden signed earlier this year.

The final rule requires certain federal contractors to pay workers on government contracts at least $15 per hour beginning January 30, 2022. After 2022, the minimum wage will be adjusted annually for inflation at a rate set by the Secretary of Labor.

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