Office of Federal Contract Compliance Programs Update

March 4, 2013
Legal Updates

WHAT HAPPENED:  Recently, the Office of Federal Contract Compliance Programs ("OFCCP") published its 2013 regulatory agenda and issued two important directives aimed at reducing discrimination in the workplace.  Directive #306, which became effective on January 29, 2013, provides information to employers about the circumstances in which excluding applicants due to their criminal records may violate nondiscrimination obligations.  Directive #307, effective February 28, 2013, outlines the procedures that will be used to review contractor compensation systems and practices during a compliance evaluation.

WHAT YOU NEED TO KNOW ABOUT DIRECTIVE #306:

WHAT YOU NEED TO KNOW ABOUT DIRECTIVE #307: 

  • Conduct a preliminary analysis of the summary data
  • Conduct an analysis of individual employee-level data
  • Determine the approach from a range of investigative and analytical tools
  • Consider all employment practices that may lead to compensation disparities
  • Develop pay analysis groups to test for statistical significance on large groups of employees
  • Investigate systemic, small group, and individual discrimination
  • Review and test factors before accepting the factors for analysis
  • Conduct onsite investigation, offsite analysis, and refinement of the model.

OFCCP's 2013 REGULATORY AGENDA—FURTHER CHANGES ON THE HORIZON: 

The OFCCP also recently published its unified regulatory agenda on the OMB's Office of Information and Regulatory Affairs website.  Based upon the unified agenda, the OFCCP is preparing for five major regulatory changes in 2013, including the infamous Section 503 and 4212 regulations.  The schedule is as follows:

  1. Section 503 regulation:  Scheduled to be finalized in April 2013.
  2. 4212 Protected Veteran regulation: Scheduled to be finalized in April 2013.
  3. Compensation Data Collection Tool: A Notice of Proposed Rulemaking (NPRM) is scheduled to be released in June 2013.
  4. Sex Discrimination Guidelines: NPRM is scheduled to be released in August 2013.
  5. Construction Contractors' regulation: NPRM is scheduled to be released in October 2013.

WHAT YOU NEED TO DO:  Don't be caught unprepared!  As its ambitious regulatory agenda indicates, the OFCCP wants to broaden affirmative action coverage and expand the compliance obligations of covered federal government contractors and subcontractors.  Significantly, the OFCCP Directives adopt the investigative and procedural requirements and allowances of Title VII. If selected for an audit by the OFCCP, a covered federal contractor should expect a long and intense audit of its hiring, termination, promotion, training, recruiting, compensation, and affirmative action practices.  Accordingly, all covered contractors and subcontractors should ensure that they are complying with their affirmative action obligations.   

Practices

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