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The Ogletree OFCCP Bulletin: August 2020

Here are the latest developments from the U.S. Department of Labor’s (DOL) Office of Federal Contract Compliance Programs (OFCCP).

OFCCP Issues New FAQ on Counting Non-Binary Employees

OFCCP recently answered a new frequently asked question (FAQ) on its General Affirmative Action Programs (AAPs) Frequently Asked Questions page. The new question 2 asks how contractors that must develop and maintain AAPs under Executive Order (EO) 11246 should “handle counting employees and/or applicants who identify as a gender other than male or female such as Gender X as is recognized in California?” EO 11246 requires certain contractors to ask applicants and employees to voluntarily self-identify certain information, including their gender.

The new FAQ explains what contractors can do regarding employees and applicants “who choose[] to self-identify as non-binary, or as a gender other than male or female.” According to the FAQ, contractors “must still include the individual in its AAP submission” but may exclude the data gathered “from the gender-based analyses required by OFCCP’s regulations.” The answer also states that contractors may not ask for documentation to prove applicants’ or employees’ gender identity or transgender status.

TRICARE Final Rule Webinar

On July 2, 2020, OFCCP published the TRICARE final rule—“Affirmative Action and Nondiscrimination Obligations of Federal Contractors and Subcontractors: TRICARE Providers” —in the Federal Register. The final rule focuses on the TRICARE moratorium, which stopped enforcement of the affirmative action obligations of TRICARE providers (a health care program of the U.S. Department of Defense that pays for the medical benefits of active duty and retired military personnel and their families). It also addressed a federal contractor exemption, under Section 107 of the Maintaining Internal Systems and Strengthening Integrated Outside Networks (MISSION) Act of 2018, from OFCCP jurisdiction.

On August 11, 2020, OFCCP announced that it will be hosting a webinar on the TRICARE final rule. The webinar will take place on August 31, 2020, from 2:00 p.m. to 3:00 p.m. eastern. According to the agency, the webinar furthers OFCCP’s “commitment to providing compliance assistance for stakeholders” and will focus “on providing OFCCP regulatory updates for federal contractors and subcontractors.” All contractors may attend the webinar by registering on OFCCP’s website.

OFCCP’S New Tools

OFCCP recently launched two revamped tools: the National Pre-Award Registry and a VEVRAA hiring benchmark database.

National Pre-Award Registry

The new National Pre-Award Registry tool lists contractors that OFCCP determined, during compliance evaluations, to be in compliance with their equal employment opportunity obligations over the last two years. This tool is likely to be helpful for contractors during the procurement process. Federal contractors can search companies in the registry, which is updated daily. Contractors can also export their search results.

VEVRAA Hiring Benchmark Database

OFCCP also recently launched a hiring benchmark database to assist federal contractors in identifying their hiring benchmarks under the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA). The new webpage assists contractors in calculating their yearly hiring benchmarks for covered veterans.

VEVRAA Focused Reviews

In other VEVRAA news, OFCCP announced that it will start VEVRAA focused reviews, which the agency first communicated to the contractor community in 2018. To assist federal contractors, OFCCP also created a VEVRAA focused review landing page that includes answers to FAQs and best practices. Finally, OFCCP recently provided answers to FAQs for military spouses, providing information about who is covered and resources that help with the recognition of state-issued licenses or certificates that may be required for a military spouse’s job.

COVID-19 National Interest Exemption Has Expired

On March 17, 2020, in response to the global COVID-19 pandemic, OFCCP announced national interest exemption (NIE) to new supply and service and construction contracts. According to OFCCP, NIEs “provide[] qualifying contractors with a temporary exemption from complying with OFCCP’s affirmative action and administrative obligations.” The NIE relieved contractors and subcontractors from their affirmative action obligations for covered contracts entered into from March 17, 2020, through June 17, 2020. The COVID-19 NIE has expired and will not be extended.

© 2022, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume X, Number 241

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...

Hera S Arsen PhD
Managing Editor of Firm Publications

Hera S. Arsen, J.D., Ph.D., is Managing Editor of the firm's publications, overseeing the firm's print and online legal publications and content. Hera, who joined Ogletree Deakins in 2003, is directly responsible for writing and editing the firm's national legal content, including coverage of federal agencies and the Supreme Court of the United States. She also oversees the Ogletree Deakins blog, which covers the latest legal news from over 20 practice-areas and jurisdictions. As leader of the firm's blog, Hera writes blog posts on a variety of legal issues, edits...