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OFCCP Posts Long-Awaited Technical Assistance Guide (TAG) for Education

On October 11, 2019, the Office of Federal Contract Compliance Programs (OFCCP) published to its website the long-awaited Educational Institutions Technical Assistance Guide (TAG). According to OFCCP, the 80-page TAG, “provides a general overview of contractor obligations specific to Educational Institutions under the equal employment opportunity laws enforced by OFCCP” and can be used “as a self-assessment tool” for educational institutions “to create, review, and update their affirmative action programs.” In addition to chapters on OFCCP’s mission and equal employment obligations, the TAG also contains separate guidance for instructional and non-instructional staff in the chapters titled “Affirmative Action Programs” and “What to Expect During a Compliance Evaluation.” It also addresses the specialty areas of athletics, medical, and online institutions.

The release of the TAG comes after months of OFCCP’s continuous focus on providing guidance to higher educational institutions. Earlier this year, OFCCP issued its inaugural opinion letter that concluded that Pell Grants do not qualify as government contracts and would not alone trigger affirmative action obligations for higher education institutions. OFCCP also recently released a new set of answers to frequently asked questions (FAQs) offering guidance on determining establishments for “campus-like” settings and issued Directive 2019-05 announcing it would limit compliance evaluations of educational institutions to non-student employees. The directive acknowledges the difficulty for educational institutions in determining student workers meet the definition of “employee” and whether student workers should be included in affirmative action programs (AAPs). While relieving higher educational institutions from tracking personnel activity and including student workers in AAPs for compliance purposes, OFCCP clarified that it would still accept and consider complaints from student workers and will make a determination on the employment status of those student workers.

OFCCP will likely cover all of these topics and hopefully more when it convenes its next Higher Education Town Hall on October 23, 2019, in Washington, D.C.

© 2020, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume IX, Number 285



About this Author

T. Scott Kelly, Defense Contracting Attorney, Shareholder, Ogletree Deakins Law firm

Scott Kelly provides practical solutions for federal contractors and subcontractors across the United States to comply with the ever-changing affirmative action obligations imposed by doing business with the federal government.  He advocates on behalf of his clients in compliance evaluations and administrative enforcement actions triggered by the United States Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP).  Mr. Kelly assists manufacturing, transportation, construction, food processing, hospitality, healthcare, and financial institutions...