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OFCCP Plans Three Proposed Rulemakings in 2019

On May 22, 2019, the Trump administration released its Spring 2019 Unified Agenda of Regulatory and Deregulatory Actions.  This agenda reports on the actions that administrative agencies plan to issue in both the near and long term.  Most notably for government contractors, OFCCP announced three regulatory priorities:

TRICARE and Other Healthcare Providers

 OFCCP’s first planned regulatory initiative is entitled “Affirmative Action and Nondiscrimination Obligations of Federal Contractors and Subcontractors: TRICARE and Certain Other Healthcare Providers.”  The abstract states that this initiative “would include limiting and otherwise altering the obligations of TRICARE and other healthcare providers” that are subject to OFCCP’s jurisdiction.  Although the agenda states that OFCCP would issue a Notice of Proposed Rulemaking in May 2019, the agency appears to have missed that deadline.

OFCCP identifies this initiative as being “deregulatory” and a “major” regulation, i.e., one having an economic impact of $100 million or more.  Last year, in Directive 2018-02, OFCCP extended a moratorium on the enforcement of compliance obligations against TRICARE subcontractors to May 7, 2021.  It is possible that the contemplated regulation will extend make permanent some or all of Directive 2018-02’s moratorium.

Religious Exemptions

In its second item, OFCCP announced that it “plans to update its regulations to comply with current law regarding protections for religion-exercising organizations.”  This initiative is also listed as “deregulatory” and its priority to the agency is described as “significant.”  The agenda states that OFCCP will issue a Notice of Proposed Rulemaking in June 2019.

Again, this regulatory initiative follows on a 2018 directive concerning religious freedom.  In Directive 2018-03, OFCCP noted several prominent Supreme Court decisions that “addressed the broad freedoms and anti-discrimination protections that must be afforded religion-exercising organizations and individuals” and instructed its staff “to take these legal developments into account in all their relevant activities.”  Now, it appears the agency may be planning to codify formal religious exemptions into its regulations. 

Resolving Potential Employment Discrimination

Finally, OFCCP announced that it would publish “Procedures to Resolve Potential Employment Discrimination.”  The goal of this initiative is to “increase clarity and certainty for OFCCP stakeholders, and enhance the agency’s efficiency in remedying employment discrimination.”  Although the description in the agenda is sparse, this initiative appears to follow OFCCP Director Craig Leen’s stated goal of increasing the agency’s transparency and cooperation with the contractor community.

OFCCP intends to issue a Notice of Proposed Rulemaking for this initiative in September 2019.  The initiative is described in the agenda as non-major and “nonsignificant.”

© Polsinelli PC, Polsinelli LLP in California


About this Author

Conne Bertram Government Contract Lawyer Polsinelli Law Firm

Connie focuses her practice on whistleblower, trade secrets, government contractors and employee mobility counseling and litigation. She frequently conducts confidential internal investigations involving executive-level employees, including alleged fraud, theft or misuse of company data, trade secrets, sexual harassment and code of conduct violations. She routinely counsels, investigates and litigates restrictive covenant and trade secrets disputes between employers and former employees.

Connie has defended complex whistleblower, trade secrets and restrictive...

Jack Blum Polsinelli Employment Attorney

Jack Blum is an associate in the firm’s Employment Disputes, Litigation, and Arbitration practice, where he represents employers in connection with a wide range of employment law issues. Jack has extensive experience in defending employers against claims by their employees in federal and state courts, as well as before government agencies like the EEOC, Department of Labor, and state human rights commissions. Jack aggressively defends his client’s personnel practices and decisions while not losing sight of their underlying business goals and objectives. Jack represents clients in all aspects of complex employment litigation and has advised and defended employer clients regarding a wide variety of employee claims, including:

• Employment discrimination, harassment, and retaliation
• Wage and hour
• Employment contract disputes
• Independent contractor/employee misclassification audits 
• Tort claims arising out of the employment relationship

Jack also has extensive experience representing parties in litigation arising from employee mobility, including claims involving non-competition, non-solicitation, and confidentiality agreements as well as the misappropriation of trade secrets. Significantly, Jack has experience in both prosecuting and defending these claims and is, therefore, able to offer clients a well-rounded assessment of their options and courses of action. Jack also has experience redressing employee data breaches under the Computer Fraud and Abuse Act.

Jack also has a background in employment counseling, where he has worked closely with in-house counsel, human resources personnel, and business executives to craft personnel policies that meet the client’s business requirements while complying with applicable laws. Jack has particular experience in assisting clients with issues relating to employee/independent contractor classifications, and regularly advises clients regarding the defensibility of classifications, drafts independent contractor agreements to provide the strongest possible arguments in support of the classification, and defends misclassification claims asserted by employees and government agencies. Jack also walks clients through sensitive personnel actions to reduce the potential for litigation or at least best position the client in the event that litigation is inevitable. Jack draws heavily upon this counseling experience in representing clients in litigation.

During law school, Jack served as a legal intern in the U.S. Securities and Exchange Commission’s Office of the Inspector General where he contributed to several high-profile internal investigations, and also interned with the Maryland Attorney General’s Office.