OFCCP Extends Deadline for Individualized Objections From Federal Contractors to Production of Their 2016-2020 EEO-1 Data in Response to FOIA Request

 As covered in a previous alert, on August 19, 2022, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) notified its federal contractor base that it received a request under the Freedom of Information Act (FOIA) from the Center for Investigative Reporting (CIR) for all Type 2 Consolidated Employer Information Reports, Standard Form 100 (EEO-1 Report), filed by federal contractors and first tier subcontractors from 2016-2020.

Contractors initially had until September 19, 2022, to file individualized objections to the production of their EEO-1 reports. Importantly, the OFCCP has extended the deadline to file an objection to October 19, 2022, to allow contractors sufficient time to ascertain whether they are covered by the FOIA request and submit objections.

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OFCCP Launches Notification of Construction Contract Award Portal

On August 26, 2022, the Office of Federal Contract Compliance Programs (OFCCP) launched its Notification of Construction Contract Award Portal (NCAP). The NCAP is a new online platform for contracting officers, applicants, contractors, and subcontractors to submit notice to the OFCCP of a construction contract or subcontract.

The OFCCP’s construction regulations require federal construction contractors to give written notice to the OFCCP within 10 working days of awarding a construction subcontract of more than $10,000 at any tier for construction work performed under a federal or federally assisted construction contract. 41 C.F.R. § 60-4.2(d)(3). Federal contracting officers, applicants for construction contracts, and non-construction contractors (in some circumstances) are also responsible for providing this notice. Id. §§ 60-4.2(b)–(c). The OFCCP uses this information to determine jurisdiction and to schedule construction contractors and subcontractors for compliance evaluations. The OFCCP has developed NCAP so that contractors can submit Form CC-314 information electronically. The OFCCP states that it also plans to use NCAP as the primary source for entering, tracking, and submitting contract award notifications for review by the agency.

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Eleventh Circuit Concludes That President Biden Likely Exceeded Authority by Issuing Federal Contractor Vaccine Mandate

On August 26, 2022, the Eleventh Circuit held that President Biden likely exceeded his authority by issuing the federal contractor vaccine mandate and affirmed the district court’s injunction prohibiting the federal government’s enforcement of the mandate against the plaintiffs. But the court also determined that the nationwide injunction — which applied to any contractor anywhere in the United States, plaintiff or not — was a “drastic form of relief.” Accordingly, the court vacated the district court’s injunction to the extent that it bars enforcement of the vaccine mandate against contractors who are not parties to the lawsuit.

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OFCCP Provides 30-day Notice Seeking Individualized Objections from Federal Contractors Before Response to FOIA Request

On August 19, 2022, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) alerted its federal contractor base that it received a request under the Freedom of Information Act (FOIA) from the Center for Investigative Reporting (CIR) for all Type 2 Consolidated Employer Information Reports, Standard Form 100 (EEO-1 Report), filed by federal contractors and first tier subcontractors from 2016-2020.  By issuing this alert, the OFCCP has met its obligation to notify contractors that it will be disclosing information unless contractors file an objection within 30-days.

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OFCCP Revises Recent Directive on Compensation Analysis

On August 18, 2022, the U.S. Department of Labor’s (DOL) Office of Federal Contract Compliance Programs (OFCCP) revised Directive 2022-01 (DIR 2022-01) to clarify its earlier guidance addressing federal government contractors’ regulatory requirement to evaluate compensation as part of their affirmative action programming. Originally referred to as the “pay equity audit,” OFCCP Director Jenny Yang noted in her accompanying DOL blog post that the change in terminology from “pay equity audit” to “compensation analysis” was made to avoid any confusion regarding the nature of contractor obligations.

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OFCCP Issues Important Update About Contractor Portal Certification Process

On July 28, 2022, the Office of Federal Contract Compliance Programs (OFCCP) issued important clarifications about the certification process through its Federal Contractor Portal (Portal). As previously reported, the Portal is new this year and required federal contractors and subcontractors (contractors) to certify the status of their annual affirmative action plan (AAP) for each establishment before June 30, 2022. In its bulletin update communicated to subscribers by email, the OFCCP stated that — although the portal remains currently open — it has not extended the June 30 deadline and that contractors that have not yet registered and certified their AAP compliance should do so as soon as possible. But it also explained that the agency will consider those contractors that requested assistance from the OFCCP on or before June 30, 2022 — but have not yet completed registration or certification because of a pending request for assistance — to have met the June 30 deadline.

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