Wednesday, December 6, 2023: OFCCP Fall 2023 Regulatory Agenda Includes Surprises: Several New Items & Two Withdrawn Items
OFCCP Withdrew Item That Would Have Required Contractors to Report their Subcontractors
Two Pending OFCCP Items Moved Back to September 2024
EEOC Returned to Regulatory Agenda Realm
We made extensive changes to our “Upcoming Date Reminders” calendar section (below) as a result of the White House’s Office of Management and Budget (“OMB”) release of its Fall 2023 Regulatory Agenda in which the federal agencies pushed back their previous target dates on numerous rulemaking items.
Regulatory Agenda Following Biden’s “Modernizing Regulatory Review” EO
Sam Berger, Associate Administrator of the OMB’s Office of Information and Regulatory Affairs (“OIRA”) posted a blog announcing the new regulatory agenda. Per President Biden’s April 2023 Executive Order (“EO”) 14094 on “Modernizing Regulatory Review,” and OIRA’s subsequent implementing guidance on broadening public participation and community engagement in the regulatory process, this is the first Regulatory Agenda in which agencies discuss their efforts to encourage public participation and engagement in the Rulemaking process and share how this engagement has informed the development of regulatory priorities, Administrator Berger pointed out. (See our previous story here for a detailed discussion of April’s EO 14094.)
A Few Notes Before Diving into the Details
We discuss below the OFCCP and EEOC items and highlight several other upcoming items of interest. For comparison, you can find the previous Spring 2023 Regulatory Agenda from June here and our detailed story on it here. Note: “NPRM” stands for “Notice of Proposed Rulemaking.” Each section begins with any items completed (or in two cases withdrawn) between the Spring 2023 Agenda and the present and ends with any new items on the agenda for each respective agency.
OFCCP has two items on the U.S. Department of Labor (“DOL”) Fall 2023 Regulatory Agenda, down from the three items on the DOL Spring 2023 Regulatory Agenda released in June. The agency did not add any new items. Both items on the new agenda were pushed back nine months to September 2024 (the eve of the Presidential election).
Previously Designated “Long-Term Action” for OFCCP NPRM to Require Contractors to Report their Subcontractors to OFCCP Withdrawn
In June, we noted that OFCCP had pushed back a planned NPRM on “Notification of Supply and Service Subcontract Awards” from March 2023 to June 2024, and it designated this item as a “Long-Term Action.” However, in the Fall 2023 Regulatory Agenda, OFCCP threw this item (RIN: 1250-AA15) into the “Completed Actions” bin, revealing that it was “Withdrawn” on August 17, 2023. OFCCP states that it withdrew this item “due to other regulatory priorities.”
Because there is no list of federal “Government” “subcontractors” available to OFCCP, the practical result is that OFCCP will not know that a company is a federal “Government” “subcontractor” unless the subcontractor voluntarily reveals that information to OFCCP.
The proposal would have, OFCCP claims, added “provision(s) to the regulations implementing Executive Order 11246 requiring contractors to provide notice to OFCCP when they award supply and service “subcontracts.” The notice would include information currently unavailable to OFCCP enabling it to schedule supply and service subcontractors for compliance evaluations.” (emphasis added)
Completed Action: OFCCP Published Final PDN Rule in August
Now in the “Completed Actions” bin, OFCCP removed from its list the Final Rule on “Pre-Determination Notice and Conciliation Procedures” (RIN: 1250-AA14), which it published in August 2023. For details on the Final Rule, which took effect on September 5, 2023, see our story here. In the Spring 2022 Agenda, OFCCP had slated June 2023 as its target date for publication of this Final Rule. Thus, the agency went two months past its target date.
Target Date for OFCCP’s NPRM to “Modernize” Supply & Service Contractor Regulations moved from December 2023 to September 2024
This further delay of this proposed NPRM moves back OFCCP’s target publication date another nine months from the Spring 2023 Agenda target date of December 2023. OFCCP now anticipates that its NPRM to modernize the Affirmative Action Programs, recordkeeping, and other Executive Order 11246 requirements for Federal Supply and Service Contractors and Subcontractors (RIN: 1250-AA13), will be published in the Federal Register in September of 2024. The regulations housing these requirements are at 41 CFR §§60-1, -2, -20 & -300 and 41 CFR §§60-300, -741, & -742. In addition, the proposal “will consider modifications in light of Executive Order 13988, Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation.”
Final “Technical Amendments” to Update VEVRAA & Section 503 Jurisdictional Thresholds & Remove Gender Assumptive Pronouns Now Slated for September 2024
Also pushed back another nine months was OFCCP’s target date for its Rule to make technical corrections to update jurisdictional thresholds for the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) and Section 503 of the Rehabilitation Act. The new OFCCP target date to publish updated Rules is now September 2024 (RIN: 1250-AA16). The Spring 2023 Agenda listed the target date as December 2023. The Federal Acquisition Regulation Council has previously published updated jurisdictional standards pursuant to section 807 of the Ronald Reagan National Defense Authorization Act, codified at 41 USC §1908, OFCCP explained. The upcoming Rule will also correct OMB control numbers for OFCCP information collection requirements and remove gender-assumptive pronouns. The regulatory citation for this item is 41 CFR §§60-1, 2, 4, 20, 30, 40, 300, 741, & 999.
The EEOC Published Its First Regulatory Agenda in Two Years as Democrats Waited to Regain Control
Following an almost two-year hiatus, the EEOC burst back onto the Regulatory Agenda scene with a total of nine items. We discuss below those relevant to our readership.
Final Regulations to Implement PWFA Expected by December 29 Statutory Deadline
The “Pregnant Workers Fairness Act” (“PWFA”) requires a covered entity to provide reasonable accommodations to a qualified employee’s or applicant’s known limitation related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, unless the accommodation will cause an undue hardship on the operation of the business of the covered entity. This statute took effect on June 27, 2023. The following day, the EEOC submitted its proposed regulations to implement the new statute for OMB review. On August 11, 2023, the Commission published its NPRM in the Federal Register. The public comment period closed on October 10, 2023, with 98,555 comments submitted. For additional background, see our stories here, here, here, and here.
The statute provides that the EEOC must issue finalized regulations to implement it by December 29, 2023. The Fall 2023 Agenda lists that precise date as the target date for publication of this Final Rule (RIN: 3046-AB30).
NEW Interim Final Rule to Amend Procedural & Administrative Regulations to Include PWFA Already Behind November 2023 Target Date
Related to the PWFA rulemaking discussed above, the EEOC plans to issue an Interim Final Rule to amend its procedural and administrative regulations to include the PFWA (RIN: 3046-AB31). The Commission is already behind on its November 2023 target date for publication of this Interim Final Rule.
NEW EEOC Also Late on November 2023 Goal to Publish Proposal to Amend Regulations on Exemptions to Recordkeeping and Reporting Requirements
The EEOC intends to amend its regulations regarding certain recordkeeping and reporting requirements under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act of 1990, and the Genetic Information Nondiscrimination Act of 2008. Specifically, the Commission plans to revise these Rules to delegate authority to grant or deny hardship exemption applications, to set forth the procedure to apply for exemptions, and to provide a non-exhaustive list of criteria to be considered to evaluate exemption applications. The Fall EEOC’s 2023 Regulatory Agenda set a November 2023 target date for this NPRM. Therefore, the agency is already a bit behind on publishing this proposal (RIN: 3046-AB28).
NEW January 2024 is the Publication Date for a Final Rule on the 2024 Adjustment to the Penalty for Violating the EEOC’s Notice Posting Requirements
The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 requires each agency to adjust its civil monetary penalties by the inflation adjustment described in the Act no later than January 15 of every year. Under 42 U.S.C. §2000e-10(a) and 29 CFR §1601.30(a), every employer, employment agency, labor organization, and joint labor-management committee controlling an apprenticeship or other training program that are covered by Title VII, ADA, PWFA, and GINA must post notices describing the applicable provisions of Title VII, ADA, PWFA, and GINA in prominent and accessible places on the entity’s premises. Failure to comply with the notice posting requirements is punishable by a fine for each separate offense, identified in 29 CFR §1601.30(b). (See our story on the current penalty amount here.)
The EEOC plans to publish a Final Rule to amend its fines by the statutory deadline of January 15, 2024 (RIN: 3046-AB26).
NEW Proposal to Amend EEOC Regulations Regarding Electronic Posting of Notice Poster Set for March 2024
Adding another item on the notice-posting front, the EEOC, in March 2024, plans to publish an NPRM to amend its regulations regarding the electronic posting of the “Know Your Rights” Poster (see our story on the most recent update to this poster here). Specifically, the Commission intends to amend its regulations at 29 CFR §1601.30 and §1627.10 to clarify the notice posting requirements related to remote, telework, and hybrid workplaces. Under this NPRM, the EEOC will propose to allow and/or require covered entities to post electronically informational notices explaining the protections against employment discrimination and providing contact information for individuals to file a charge of discrimination with the Commission under the laws it enforces (RIN: 3046-AB29)
NEW EEOC Plans, in September 2024, to Propose Rule on Fees for FOIA Electronic Disclosure of Records
In September 2024, the EEOC plans to publish a proposal to amend its Freedom of Information Act (“FOIA”) procedures by identifying fees it will charge for electronic disclosure of records, reflecting internal reassignment of FOIA responsibilities, and clarifying the agency’s transition to different electronic FOIA software (RIN: 3046-AB20).
Completed Action: WHD’s Publication of Final Rule Updating Davis-Bacon & Related Acts Regulations
In August 2023, the WHD published its controversial Final Rule updating its Davis-Bacon Act Regulations to increase prevailing wages on public construction projects (RIN: 1235-AA40). (For details on this Final Rule, see our story here). The Final Rule took effect on October 23, 2023.
How We Got Here: The WHD published its NPRM to update the Davis-Bacon and Related Acts regulations on March 18, 2022. The comment period ended on May 17, 2022, with approximately 40,935 comments submitted. Our stories here and here detailed that proposal.
In the Spring 2023 Agenda, the WHD set June 2023 as the target date for the Final Rule’s publication. Thus, the agency published two months behind its target date.
WHD Independent Contractor Final Rule Already Behind New November 2023 Target Date
The US DOL Wage and Hour Division’s (“WHD”) new target date to publish its Final Rule on “Employee or Independent Contractor Classification Under the Fair Labor Standards Act” (RIN: 1235-AA43) is now November 2023, meaning the WHD is already behind schedule. In the Spring 2023 Regulatory Agenda, the WHD had slated the target date for August 2023.
How We Got Here: The WHD published an NPRM in the Federal Register on Thursday, October 13, 2022, that would apply a six-part “Totality of Circumstances” Test to determine whether a “worker” (neutral term) is an “employee” or an “ independent contractor” under the Fair Labor Standards Act. We discussed this NPRM in detail here. The comment period on this proposal closed on December 13, 2022, with approximately 54,400 public comments submitted.
Also of note: This upcoming Rule is instrumental to the final disposition of a pending court challenge to the Biden Administration’s attempt to rescind the Trump-Era independent contractor Rule (we discussed that case here). The case is currently pending in the U.S. Court of Appeals for the Fifth Circuit in New Orleans (Coalition for Workforce Innovation v. Walsh; Case No. 22-40316).
On Friday, June 9, 2023, the DOL requested a stay in the case for 120 days, stating that the Department is continuing to review and consider the comments received during the comment period on the NPRM. The Department further stated that its issuance of a Final Rule “should make it unnecessary to pursue this appeal” and the DOL expects that to be completed within the 120-day period, which ends in October. The Fifth Circuit granted the unopposed motion.
Final Overtime Rule Slated for April 2024
April 2024 is the anticipated publication date of the WHD’s Final Rule on “Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales, and Computer Employees” (RIN: 1235-AA39). If finalized, this Rule would revise the regulations at 29 CFR §541, which implement the exemption of bona fide executive, administrative, and professional employees from the Fair Labor Standards Act’s minimum wage and overtime requirements.
How We Got Here: On September 8, 2023, the WHD published its NPRM in the Federal Register (see our stories here and here for details). The comment period closed on November 7, 2023, with almost 26,300 comments submitted. This NPRM publication was only slightly behind the August 2023 target date set forth in the Spring 2023 Agenda.
OMB-Approved Final Rule on Nondisplacement of Qualified Workers Under Service Contracts Already Behind New Publication Target Date
Last week, we reported that the OMB approved the WHD’s Final Rule on “Nondisplacement of Qualified Workers Under Service Contracts.” Thus, its publication is imminent. (For more details on how this Rule will impact federal contractors, see the DE Under 3 video here).
How We Got Here: On July 15, 2022, the WHD published its NPRM. In that proposal, the WHD stated its intention is for the Rule to keep individuals employed after a federal service contract has expired (the Service Contract Act of 1965, as amended, covers most service contracts over $250,000). As proposed, the Rule would generally require contractors and subcontractors who work on covered federal service contracts to place clauses into successor contracts involving the “same or similar” work for existing services deals to provide employees a right of first refusal for positions under the contract for which those employees are qualified. For more details, see our story here. The public comment period closed on August 15, 2022, with 33 comments submitted.
NEW WHD Plans to Publish in September 2024 a Proposal on Minimum Wages for Workers with Disabilities
Slated for September 2024, the WHD intends to publish an NPRM on “Employment of Workers With Disabilities Under Special Certificates” (RIN: 1235-AA14). Under Section 14(c) of the Fair Labor Standards Act, employers may apply for special certificates from the WHD to pay individuals with disabilities less than the federal minimum wage (which is currently $7.25 per hour.) There is no minimum floor for the hourly wage that an employer may pay an individual with a disability under these certificates.
In October, we reported that the US DOL launched a “comprehensive review” of this program to re-examine its use and future viability. We also reported that the US DOL’s Office of Disability Employment Policy (“ODEP”) scheduled a series of “stakeholder engagement sessions” on the Section 14(c) subminimum wage program.
OSHA’s Publication of a Final Rule on Occupational Exposure to COVID-19 in Healthcare Settings Slated for this Month
US DOL’s Occupational Safety and Health Administration (“OSHA”) published its Interim Final Rule on Occupational Exposure to COVID-19 in Healthcare Settings on June 21, 2021. The agency published corrections to that Interim Final Rule on July 14, 2021. The comment period closed on August 20, 2021, with 873 comments submitted. OSHA submitted this Final Rule to OMB on December 7, 2022. The agency pushed back its Spring 2023 Agenda target date of June 2023 to publish its Final Rule and now anticipates publishing its Final Rule in December 2023 (RIN: 1218-AD36).
No Target Date Set for Final Rule Regarding Proposal to Revise OSHA’s Regulations to Allow Employee Representatives to Attend Safety Inspections
OSHA reported in the Fall 2023 Agenda that it is still analyzing the thousands of comments it received on its proposal to revise regulations regarding employee representatives to participate in safety inspections. The proposed changes would allow a union representative to accompany an OSHA inspector during a “walkaround” at a nonunion worksite, regardless of whether the union representative is an employee of the organization undergoing inspection. For more details on the proposal, see our story here.
How We Got Here: On August 30. 2023, OSHA published an NPRM on the “Worker Walkaround Representative Designation Process.” Following an extension, the comment period ended on November 13, 2023, with 11,530 comments submitted. In the Fall 2023 Agenda, OSHA did not provide a target date for publication of its Final Rule, but rather stated that it was analyzing comments as of November 2023 (RIN: 1218-AD45).
OSHA Still Working on Developing Proposal for Regulations on Heat Illness Prevention
Still at the “Prerule Stage,” OSHA intends to continue working to develop a new Rule to establish a national standard on Heat Illness Prevention. We reported in July that OSHA issued its first-ever Hazard Alert for Extreme Heat. OSHA currently uses the “General Duty Clause” (at Section 5(a)1 of the Occupational Safety and Health Act) to prosecute employers for failing to furnish employees with a workplace that is free from recognized hazards that “are causing or likely to cause death or serious harm.”
At the same time, OSHA continues to develop a national standard for workplace heat-safety rules. Although the agency published an “Advance Notice of Proposed Rulemaking” (“ANPR”) on October 27, 2021, it has yet to issue an NPRM as to this standard.
Per the requirements of the Small Business Regulatory Enforcement Fairness Act (“SBREFA”), OSHA convened a Small Business Advocacy Review (“SBAR”) Panel on August 25, 2023, to gather feedback. In the Fall 2023 Agenda, OSHA set a target date of November 2023 for completing the SBREFA requirements and it plans to complete its analysis of the SBREFA report in January 2024 (RIN: 1218-AD39).
DOL OASAM’s Withdrew Its Plan to Revise/Clarify WIOA EEO Regulations Related to Sex
In our story on the Spring 2023 Regulatory Agenda, we reported that the US DOL’s Office of the Assistant Secretary for Administration & Management (“OASAM”) had slated August 2023 as its target date to publish a Proposed Rule on “Revision of the Regulations Implementing Section 188 of the Workforce Innovation and Opportunity Act (WIOA) to Clarify Nondiscrimination and Equal Opportunity Requirements and Obligations Related to Sex.” However, in the Fall 2023 Regulatory Agenda, OASAM threw this item (RIN: 1291-AA44) into the “Completed Actions” bin, revealing that it was “Withdrawn” on August 23, 2023.
The WIOA is a 2014 law designed to help job seekers access employment, education, training, and support services to succeed in the labor market. Section 188 of WIOA prohibits the exclusion of an individual from participation in, denial of the benefits of, discrimination in, or denial of employment in the administration of or in connection with any programs and activities funded or otherwise financially assisted in whole or in part under Title I of WIOA “because of sex,” among several other protected bases. The now abandoned proposal would have updated DOL regulations at 29 CFR Part 38 to clarify that discrimination on the basis of sex includes discrimination on the basis of sexual orientation, consistent with the Supreme Court’s 2020 decision in Bostock v. Clayton County (140 S. Ct. 1731) and subsequent legal developments.
In the Fall 2023 Regulatory Agenda, OASAM stated that while it has “withdrawn this rulemaking at this time. The Department remains committed to protecting all workers under our existing rule and interpretive guidance.”
Election Protection Final Rule Now Slated for March 2024 publication
The NLRB published its NPRM on “Fair Choice and Employee Voice” on November 4, 2022. The proposal would revise the representation election procedures located at 29 CFR §103 with a focus on amendments it issued on April 1, 2020. It would rescind the current Final Rule adopted by the prior Board majority in 2020. The proposed Rule would rescind and replace the 2020 amendments to the Board’s Rules governing blocking charges and the voluntary-recognition bar doctrine and rescind the amendment governing proof of majority support for labor organizations representing employees in the construction industry. Our story here further explains the proposal.
After an extension, the comment period concluded on February 2, 2023, with 110 comments submitted. The Spring 2023 Agenda set the target date for this Final Rule as August 2023, but the Fall 2023 Agenda has changed the target date to March 2024 (RIN: 3142-AA22).
Still No Target Date for FTC’s Final Rule on Non-Competes; Agency Still Reviewing 20,000+ Public Comments
In January, the FTC published a Proposed Rule that would: (1) prohibit employers (nationwide) from using non-compete clauses in their contracts with employees, (in addition to “independent contractors” and “volunteers”), and (2) require employers to rescind existing NCAs and actively inform workers that they are no longer in effect. The proposal would also make it illegal for an employer to represent to a worker that the worker is subject to an NCA where the employer lacks a good faith basis to believe that the worker is subject to an enforceable non-compete clause. Moreover, the proposed Rule would preempt all state laws providing lesser protections. The public comment period for the proposal closed on April 19 with approximately 21,112 comments submitted. When the FTC first published its proposal in January, we discussed its provisions here. See also our related content here, here, here, and here.
The Spring 2023 Agenda did not include a target date for the FTC’s Final Rule. Instead, it indicated that the FTC staff is reviewing public comments as of June 2023. The Fall 2023 Agenda still does not provide a target date for this Final Rule. Rather, it states that the FTC staff is, as of December 2023, still reviewing public comments and conducting a policy analysis (RIN: 3084-AB74).