OFCCP Update for Government Contractors and Subcontractors

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It has been an eventful month for government contractors and subcontractors, with a number of interesting actions from President Trump, as well as the Office of Federal Contract Compliance Programs. The following are included among the more significant developments:

  • Executive Order on Combating Race and Sex Stereotyping. On September 22, 2020, President Trump signed an executive order that prohibits “divisive concepts” such as race or sex stereotyping or scapegoating in diversity training. The order requires the following of government contractors and subcontractors entering into federal contracts or subcontracts covered by Executive Order 11246 on or after November 21, 2020:
    • Workplace training may not include any form of race or sex stereotyping or scapegoating (e.g. that an individual is inherently racist, sexist or oppressive by virtue of their own race or sex, among other things)
    • A forthcoming notice, “Combating Race and Sex Stereotyping,” must be posted in a conspicuous location for employees and applicants.
    • The same notice must be provided to labor unions or worker representatives, if any.
    • Subcontracts and purchase orders must include these same provisions, which will be binding on subcontractors and vendors, unless exempted by the Secretary of Labor.
    • In response to a forthcoming Request for Information from the Director of the OFCCP, contractors and subcontractors will provide information about their diversity and inclusion training.

The OFCCP has established a hotline to receive complaints of violations of the Order, which it will investigate: 202-343-2008 or via email at OFCCPComplaintHotline@dol.gov. Violations may result in cancelation, termination or suspension of the federal contract, and debarment from future contracts.

  • CSAL (Corporate Scheduling Announcement List). In the past, the OFCCP sent letters to contractors on its Corporate Scheduling Announcement List (CSAL), informing them of its intent to conduct a compliance audit. Beginning two years ago, the OFCCP instead posted the list on its FOIA website, and it has now released the next list, separated into FY2020 supply and service contractors and FY2020 construction contractors. In addition to the past reviews for supply and service contractors that included traditional broad-based compliance reviews, glass ceiling reviews, functional affirmative action reviews, and more limited Section 503 Focused Reviews and Compliance Checks, the OFCCP will also be conducting focused reviews on promotions and accommodations. Construction contractors will be subject to Compliance Checks. For contractors on the list, the OFCCP will begin sending out individual letters of the actual audits in about 45 days. Once a contractor receives a letter, it will have 30 days in which to provide the requested information, which will be extensive. We recommend that those on the list take steps now to ensure that they are ready to submit the required information and that they have taken other appropriate actions to demonstrate compliance with the relevant requirements.
  • Promotions and Accommodations Focused Reviews Landing Pages. In connection with the newly-implemented focused reviews on promotions and accommodations, the OFCCP has created landing pages for each of those types of reviews that provides an overview of the reviews and what contractors may expect. These join the existing landing pages for Section 503 and VEVRAA focused reviews.

FAQ on Counting Non-binary Employees. The OFCCP added a question to its General Affirmative Action Program FAQs that addresses an issue of increasing interest – how to count employees who self-identify as non-binary or other than male/female. The OFCCP states that, with regard to such employees, “the contractor must still include the individual in its AAP submission. However, the contractor may exclude that individual’s data from the gender-based analyses required by OFCCP’s regulations.”