The Ogletree OFCCP Bulletin: December 2020
Here are the latest developments from the U.S. Department of Labor’s (DOL) Office of Federal Contract Compliance Programs (OFCCP).
New Religious Exemption Final Rule. OFCCP recently finalized a rule to “clarify the contours” of Executive Order 11246 on religious exemptions and its related obligations. “Implementing Legal Requirements Regarding the Equal Opportunity Clause’s Religious Exemption,” which OFCCP finalized on December 9, 2020, establishes protections for religious organizations to “hire employees who will further their religious missions, thereby providing clarity that may expand the eligible pool of federal contractors and subcontractors.” OFCCP’s news release on the final rules states that the agency has answered frequently asked questions to help explain the rule, which goes into effect on January 8, 2021. OFCCP will conduct a webinar for stakeholders on the final rule on January 8, 2021, as well.
New Technical Assistance Guide. On December 3, 2020, OFCCP announced its new technical assistance guide for small contractors. The guide is aimed at “small federal supply and service, construction contractors and subcontractors,” in addition to “federally assisted construction contractors and subcontractors.” According to OFCCP, “[t]he agency considers contractors’ sizes when developing its requirements to consider the burdens on small contractors.” In that regard, the guide is intended to assist smaller entities in complying with their equal employment opportunity (EO) obligations. OFCCP states that “[s]mall contractors can use the technical assistance guide as a self-assessment tool to review the practices they have in place to eliminate discrimination and achieve their equal employment opportunity goals.”
OFCCP’s New Certainty Directive. On December 15, 2020, OFCCP announced a new directive “[t]o reaffirm OFCCP’s commitment to a number of certainty initiatives and principles, and establish a process to facilitate the continued provision of clarity and certainty in OFCCP policies and practices.” Directive 2021-02—or the certainty directive—which went into effect on December 15, 2020, was intended to ensure “that contractors know what OFCCP expects of them so they can comply with the law.” By way of background, the directive explains that OFCCP adopted four “CERT” principles in 2018—certainty, efficiency, recognition, and transparency—“as a matter of good governance and better service to the public,” and, with the publication of the latest directive, has published directive in all four areas: certainty directive; efficiency directive ; recognition directive; transparency directive. The certainty directive incorporates the What Federal Contractors Can Expect document.