On December 23, 2023, a federal District Court in California issued an order compelling the OFCCP to produce formerly-withheld EEO-1 reports to a news organization who submitted Freedom of Information Act (FOIA) requests for the reports. This order is significant because it compels the OFCCP to produce the EEO-1 reports for all federal contractors between 2016 and 2020. The plaintiff news organization submitted four FOIA requests to the OFCCP between 2019 and 2022 requesting all EEO-1 reports submitted by all federal contractors from 2016 through 2020. OFCCP published a notice in the Federal Register informing all contractors of the requests and an opportunity to object. OFCCP released all EEO-1 reports from all non-objecting contractors. The instant litigation relates to the EEO-1 reports of the objecting contractors.
Continue Reading Federal Court Rules EEO-1 Reports Not FOIA-Exempt

On October 30, 2023, President Biden issued a wide-ranging Executive Order to address the development of artificial intelligence (“AI”) in the U.S. Entitled the Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence, the Order seeks to address both the “myriad benefits” as well as what it calls the “substantial risks” that AI poses to the country. It caps off a busy year for the Executive Branch in the AI space. In February the Equal Employment Opportunity Commission published its Strategic Enforcement Plan highlighted AI as a chief concern and in April the White House released an AI Bill of Rights. Through the Order, described as a “Federal Government-wide” effort, the administration charges a number of federal agencies, including most notably, the Department of Labor, with addressing the impacts of employers’ use of AI on job security and workers’ rights.
Continue Reading Biden’s AI Order and the Implications for Employers

On August 25, the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) announced an updated Scheduling Letter and Itemized Listing that places a more onerous information disclosure burden on federal contractors in responding to a Supply and Service compliance audit. In particular the updated Scheduling Letter, OMB No. 1250-0003, now requires federal contractors to produce more documentation for a variety of Items and increases both the scope and breadth of requested compensation data.
Continue Reading New OFCCP Scheduling Letter and Itemized Listing Increases Burden on Federal Contractors

The Office of Federal Contract Compliance Programs (OFCCP) recently published a final rule titled “Pre-enforcement Notice and Conciliation Procedures.” This rule rescinds the evidentiary standards from the 2020 rule titled “Nondiscrimination Obligations of Federal Contractors and Subcontractors: Procedures to Resolve Potential Employment Discrimination,” which required specific pre-determination notice requirements and certain evidentiary standards. In a blog post, the OFCCP explains that the “new final rule restores flexibility to OFCCP’s pre-enforcement and conciliation procedures, promotes efficiency in resolving cases, strengthens enforcement and promotes alignment of the standards of Title VII of the Civil Rights Act of 1964.”
Continue Reading OFCCP Publishes Final Rule on Pre-Determination Requirements and Conciliation

Federal contractors have had a flurry of headlines to keep up with over the last few months. Most prominent among them is the Federal Acquisition Regulatory Council’s interim rule barring federal agencies and contractors from using TikTok or any other ByteDance product (the “Covered Applications”).
Continue Reading TikTok “Bytes” the Dust for Federal Contractors and Other Important Updates

Since 2014, OFCCP-covered employers have been required to invite job applicants, pre-offer, to disclose their disability status via a form prescribed by the OFCCP.  The information thus obtained helps employers analyze (1) the efficacy of their diversity recruiting efforts and (2) hiring rates of persons with disabilities. This week, the Agency unveiled a modified format for that invitation. OFCCP hopes the revised form will increase the response rate for applicants and employees, who are often reluctant to disclose disabilities.
Continue Reading OFCCP Updates Disability Self-ID Form

The OFCCP vowed things would change after President Trump’s election.  It is making good on that promise.  The Agency issued three new Directives in the last two weeks, following four others earlier this year.  The good news for contractors is that the OFCCP’s actions are almost all pro-business, aimed at making the Agency more transparent, objective, and efficient.
Continue Reading The OFCCP’s Been Busy — 9 New Directives This Year, Largely Pro-Business