OFCCP

OFCCP Director’s Departure Should Not Change Agency’s Priorities

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OFCCP recently lost Trump-appointed Director Ondray Harris due to his resignation. Deputy Director Craig Leen takes Harris’s place in the interim. Harris’s departure raises some important questions that covered federal contractors may be asking.

What was Harris able to accomplish during his short tenure?  During Harris’s time at the Agency, there were few policy developments. The Agency extended the moratorium on audits for many health care providers who offer medical coverage under the military’s TRICARE program. In addition, the Agency made good on its promise to provide contractors with additional transparency by (1) publishing its scheduling methodology; and (2) releasing a guidance document titled “What Contractors Can Expect” that stresses good behavior by the Agency and its staff. READ MORE →

OFCCP to Change the Way it Assesses Contractors’ Compensation Systems

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The Office of Federal Contractor Compliance Programs (“OFCCP”) may soon rescind Directive 307, OFCCP’s current official statement as to how it conducts federal contractor compensation system reviews, according to a story published by Bloomberg Law on April 19, 2018. This announcement comes on the heels of Directive 2018-01, issued by the OFCCP on February 27, 2018, which mandates the use of Predetermination Notices (“PDN”) prior to issuing a Notice of Violation (“NOV”), and further requires national office oversight and approval before a PDN is issued.  OFCCP notes that Directive 2018-01 is consistent with the agency’s focus to increase transparency about preliminary findings with contractors, and encourage communication throughout the compliance evaluation process.  Combined, these two developments illustrate that change is afoot at OFCCP, now that new leadership is in place in Washington. READ MORE →

OFCCP’s New Directive on Predetermination Notices Gives Contractors a Second Chance

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Effective February 27, 2018, the Office of Federal Contract Compliance Programs (OFCCP), which is charged with ensuring federal contractors and subcontractors provide equal employment opportunity, issued Directive 2018-01, announcing that predetermination notices (PDNs) will be sent to federal contractors and subcontractors for all audits and compliance reviews where a finding of unlawful employment discrimination is imminent.  READ MORE →

OFCCP Files Discrimination Complaint Targeting Tech Hiring Practices

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Earlier this year, we predicted that the Department of Labor’s Office of Federal Contract Compliance (“OFCCP”) would ramp up investigations directed at rooting out alleged discrimination by information technology companies.  Many tech companies have indeed been the focus of increasingly intense and acrimonious investigations in 2016.

OFCCP took its enforcement efforts to the next level this week by filing a formal administrative complaint for violations of Executive Order 11246 (which prohibits discrimination by federal contractors).  The complaint alleges that Palantir Technologies – a private software company headquartered in Palo Alto and recently valued at $20 billion – discriminated against Asian applicants for three positions (QA Engineer, Software Engineer, and QA Engineer Intern).  Specifically, the OFCCP alleges that the company hired largely based on an employee referral system that resulted in statistically significant underrepresentation of Asian hires, given that the vast majority of applicants for these jobs were Asian.  The complaint seeks to debar the company from future federal contracts and require “complete relief” for Asian applicants for these roles, including lost compensation, hiring, and retroactive seniority.

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North Carolina’s “Bathroom Bill” Dealt a Blow as Debate on Transgender Access Continues

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On August 26, 2016, a North Carolina federal judge blocked the University of North Carolina (UNC) from enforcing a state law requiring transgender people to use bathrooms and locker rooms corresponding to the sex on their birth certificates.

With the passage of House Bill 2 (HB2) in March 2016, North Carolina became the first state to ban people from using restrooms consistent with their gender identity in government buildings and schools.  News of HB2 stirred up a public outcry, including a Department of Justice lawsuit and the NBA’s decision to relocate the 2017 All-Star game from Charlotte, North Carolina to another location.

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Labor Laws and Federal Contracting Intersect: How Universal Health Systems Could Subject Federal Contractors to False Claims Act Liability

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This post was drafted with contribution from Annie Prasad, law clerk.

The Supreme Court has made federal contracting more treacherous by extending the reach of False Claims Act (“FCA”) liability.  While the decision related to FCA liability for misrepresentations related to staffing levels, the case may provide a roadmap for federal officials looking to trigger FCA claims against contractors who are noncompliant with federal labor laws enforced by the Department of Labor.  Specifically, those at risk of debarment or cancellation of contracts due to noncompliance with Executive Order 11246 or the proposed Fair Pay and Safe Workplaces Executive Order may be at risk of more serious penalties.

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Not So Fast: Administrative Review Board Vacates Discrimination Finding Sought by OFCCP

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A recent decision from the Department of Labor’s Administrative Review Board serves as a warning to federal agencies against overreaching in their efforts to identify alleged employment discrimination.  It also serves to highlight the heavy burden that plaintiffs—whether government agencies or private litigants—must carry in cases alleging a pattern or practice of disparate treatment.

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Maryland’s Amendment Would Expand Equal Pay to Include “Gender Identity,” Strengthen Protections Along Other More Familiar Lines

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As we noted in last week’s coverage of Equal Pay Day’s twentieth anniversary, the issue of equal pay has been drawing increasing attention from regulators, legislators and plaintiffs’ attorneys nationwide.  Of particular note, a report issued in January 2016 by the National Women’s Law Center highlighted the unprecedented level of new equal pay legislation at the state level. Leading this wave of activity, both New York’s Achieve Pay Equity law and California’s Fair Pay Act law have in place the broadest protections for employees seeking to bring gender-based equal pay claims.  Additionally, a number of other states have adopted piecemeal legislation addressing equal pay, such as prohibiting employer retaliation based on employee discussions of wages (Connecticut, New Hampshire, Oregon), holding state contractors responsible for certifying their equal pay compliance (Delaware, Minnesota, Oregon), increasing civil penalties for equal pay violations (Illinois), or requiring employers to maintain wage records in anticipation of potential state government inquiries (North Dakota).

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Equal Pay Day 2016:  Where Are We 20 Years Later?

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Today marks the twentieth anniversary of “Equal Pay Day,” which the National Committee on Pay Equity launched as a public awareness event in 1996 to symbolize how far into the year women must work to earn what men earned in the previous year.  In more than 50 years since enactment of the federal Equal Pay Act (“EPA”) and Title VII of the Civil Rights Act of 1964 (“Title VII”), women have made significant progress in the workplace and now make up roughly half of the American workforce.  However, women working full time still earn, on average, 79 cents for every dollar earned by men, and this number has barely moved in over a decade.  That said, it is still not clear that employer bias is to blame for the gap that remains.  Indeed, the pay gap measures only the difference in average earnings between all men and all women; it is not a proxy for pay bias—i.e., the failure to pay women equal pay for equal work.  Eliminating pay bias is important, but focusing heavily on perceived employer bias obscures a much more complex web of factors contributing to the problem of pay differences between men and women.

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