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Legal Alert: OFCCP Reveals Plans for Releasing Proposed Rules in 2014

Date   Dec 5, 2013

The OFCCP has released its semiannual regulatory agenda, in which the agency discusses the issues it plans to address in 2014. 

Executive Summary:  The OFCCP has released its semiannual regulatory agenda, in which the agency discusses the issues it plans to address in 2014.  According to the agenda, the OFCCP will be issuing proposed rules on pay data collection, revised sex discrimination guidelines, and updated affirmative action requirements for federal construction contractors.

The OFCCP states that in January 2014 it will issue a notice of proposed rulemaking (NPRM) on a new compensation data collection tool.  Previously, the OFCCP published an Advanced Notice of Proposed Rulemaking (ANPRM) seeking public input on its development and implementation of a compensation data collection tool to collect information on salaries, wages and other benefits paid to employees of federal contractors and subcontractors.  See our Legal Alert: OFCCP Begins Development of Compensation Data Collection Tool, August 16, 2011, for more information.  In the ANPRM, the OFCCP indicated that it might use compensation data collected through the tool to identify contractors in specific industries for industry-focused compensation reviews.  The agency also sought input on whether it should request to compare compensation data across contractors in a particular industry.  Additionally, the OFCCP indicated that it was exploring the possibility of using the data collected through the tool to identify opportunities for nationwide multi-establishment compensation reviews.  Many comments were submitted by the contracting community expressing concerns with respect to the proposed tool.

The regulatory agenda also states that the OFCCP will be publishing a NPRM in April 2014 that will revise affirmative action obligations for federal and federally assisted construction contractors and subcontractors.  The OFCCP has stated that the proposed rules will remove outdated goals for the utilization of minorities and women, and will provide contractors with increased flexibility to assess their workforce and determine whether disparities in the utilization of women or of a particular racial or ethnic group in an on-site construction job group exist.

Additionally, the regulatory agenda states that the OFCCP will release a NPRM in May 2014 that updates its sex discrimination guidelines for contractors covered by Executive Order 11246.  According to the agency, the proposed rule would reflect the current state of the law pertaining to sex discrimination, including Title VII, which has been amended twice since the agency issued the original sex discrimination rules.

We will continue to keep you informed regarding regulatory action taken by the OFCCP.  If you have any questions regarding this Alert or federal contractors' affirmative action and nondiscrimination obligations, please contact Linda Cavanna-Wilk, lcavanna-wilk@fordharrison.com, who is a member of FordHarrison's Affirmative Action/Government Contracts Group. You may also contact the FordHarrison attorney with whom you usually work.