This week, the Department of Labor (DOL) and Office of Management and Budget (OMB) issued a memo directing all agencies to designate “agency labor advisers” who are responsible for advising agencies on “Federal contract labor matters.” FAR Part 22 contemplates the appointment of “agency labor advisors,” and requires contractors to contact them about potential labor
Updated Guidance Suggests that Federal Government May Enforce Contractor Vaccine Mandate
The Safer Federal Workforce Task Force issued updated guidance for federal contractors on October 14, 2022, announcing that it will reevaluate enforcement of the federal contractor vaccine mandate and safety requirements issued under Executive Order 14042. This is the first pronouncement from the Task Force after it had indicated that it would not enforce the
OFCCP Extends the EEO-1 FOIA Objection Deadline to October 19, 2022
As outlined in our prior client alert, the Office of Federal Contract Compliance Programs (the “OFCCP”) published a Notice in the Federal Register to federal contractors of a Freedom of Information Act (“FOIA”) request for disclosure of Type 2 Consolidated EEO-1 Report data submitted by all federal contractors and first-tier subcontractors from 2016 until
Federal Government Will Not Enforce the Contractor Vaccine Mandate Absent Further Notice
On August 31, 2022, the Safer Federal Workforce Task Force announced that the Federal Government “will take no action to implement or enforce Executive Order 14042,” the contractor vaccine mandate, “to ensure compliance with an applicable preliminary nationwide injunction, which may be supplemented, modified, or vacated, depending on the course of ongoing litigation.”
This announcement
OFCCP Issues Revised Directive Addressing Privilege Concerns, But Significant Concerns Remain
Responding to significant uproar from the federal contracting community, on August 18, 2022, the Office of Federal Contract Compliance Programs (“OFCCP”) issued a revised version of its Directive 2022-01 – Advancing Pay Equity Through Compensation Analysis, which was originally issued on March 15, 2022. The Revised Directive is, per the OFCCP, intended to clarify its earlier guidance addressing federal contractors’ regulatory obligation to evaluate “compensation systems” as part of their affirmative action programming, and the documentation the OFCCP expects contractors to provide to the OFCCP regarding their analyses. Most importantly, the Revised Directive steps back from the position the Agency took in the March 15 Directive with regard to the applicability of the attorney-client privilege to analyses contractors are required to undertake pursuant to the Agency’s regulations. The Agency had previously taken the position that contractors conduct undefined “pay equity” analyses pursuant to the Agency’s regulatory obligation and, as a result, could not assert attorney-client privilege over such analyses.
Federal Contractors Have Until September 19, 2022 to Object to Disclosure of EEO-1 Data Subject to Pending FOIA Request
On August 19, 2022, the Office of Federal Contract Compliance Programs (the “OFCCP”) published a Notice in the Federal Register to federal contractors of a Freedom of Information Act (“FOIA”) request from Will Evans of the Center for Investigative Reporting (“CIR”) for disclosure of Type 2 Consolidated EEO-1 Report data submitted by all federal contractors and first-tier subcontractors from 2016 until 2020. In order to determine whether this information is protected from disclosure under FOIA Exemption 4, which protects disclosure of confidential commercial information, the OFFCP requested that federal contractors whose information would otherwise be subject to this request submit objections to the OFCCP by September 19, 2022. Type 2 EEO-1 reports are one of the mandatory submissions that multi-establishment employers file annually, consistent with their obligations under Title VII of the Civil Rights Act of 1964 and the OFCCP’s regulation. They consist of a consolidated report of demographic data for all employees by employer establishment, categorized by race/ethnicity, sex and EEO-1 job category. Notably, the FOIA request at issue does not seek production of Component 2 compensation data included in the EEO-1 reports submitted by federal contractors and subcontractors in 2017 and 2018.
President Biden’s Executive Order Mandates Project Labor Agreements for All “Large-Scale” Federal Construction Projects
On February 4, 2022, President Biden signed an Executive Order on Use of Project Labor Agreements for Federal Construction Projects (the “Order”) for federal construction projects valued at $35 million or more. The Order instructs federal agencies to require “every contractor or subcontractor engaged in construction” on projects valued at $35 million or more to “agree, for that project, to negotiate or become a party to” a Project Labor Agreement (“PLA”) with “one or more appropriate labor organizations.”
Federal agencies are authorized to grant exceptions to this PLA requirement under certain defined circumstances. The Order supersedes an executive order issued by then-President Obama in 2009, which had encouraged, but not mandated, the use of PLAs on construction projects valued at more than $25 million. The Order is characterized as a measure that will “promote economy and efficiency in Federal procurement” and advance “small business interests” and represents a noteworthy shift in United States federal labor policy, underscoring President Biden’s commitment to fulfilling his campaign promise to be the most labor-friendly President in history.
The Order applies to all “large-scale construction projects,” defined as a “Federal construction project within the United States for which the total estimated cost of the construction contract to the federal government is $35 million or more.” The Federal Acquisition Regulatory Council (“FAR Council”), in consultation with the President’s Council of Economic Advisers, may adjust this threshold based on inflation. “Construction” is defined to mean “construction, reconstruction, rehabilitation, modernization, alteration, conversion, extension, repair, or improvement of buildings, structures, highways, or other real property.” It appears that the Order does not apply to federally funded projects under the control of state and/or local governments.
A Georgia District Court Enjoins the Government from Enforcing the Federal Contractor Vaccine Mandate Nationwide
Earlier today, the U.S. District Court for the Southern District of Georgia issued a preliminary nationwide injunction of the contractor vaccine mandate in Executive Order 14042. This injunction will bar the Government “from enforcing the vaccine mandate for federal contractors and subcontractors in all covered contracts in any state or territory of the United States
Federal Contractors Now Have Until January 4 for Their Covered Workforce to be Vaccinated
On November 4, 2021, the White House released a Fact Sheet announcing that federal covered contractors now have until January 4, 2022 for their covered employees to receive their final vaccination doses. Under the Executive Order 14042 and the Safer Federal Workforce Task Force guidance, covered contractors previously had until December 8, 2021 to have
Task Force Issues New FAQs for Contractor Vaccine Requirements
On November 1, 2021, the Safer Federal Workforce Task Force (Task Force) issued new Frequently Asked Questions (FAQs) for federal contractors that are subject to Executive Order (EO) No. 14042 on Ensuring Adequate COVID Safety Protocols for Federal Contractors. The new guidance addresses requests for accommodations, applicability to corporate affiliates, and recommendations for enforcement and compliance. As required by the implementing contract clause, covered contractors are required to comply with this new guidance.
Requests for accommodations: First, the FAQs state that requests for accommodation do not need to be resolved before a covered contractor employee begins work on a covered contract or at a covered workplace. While requests are pending, these employees must follow workplace safety protocols for employees that are not fully vaccinated as specified in the Task Force Guidance for Federal Contractors and Subcontractors, which Crowell addressed in client alerts on September 24, 2021 and October 6, 2021. On the other hand, for covered employees that are not vaccinated because they received an accommodation from the covered contractor, agencies are entitled to determine which protocols such employees must follow when they enter a federal workplace. Notably, agencies may determine that mandating the vaccine is the only safety measure available. In such cases, covered employees with accommodations would be unable to work at the federal workplace but the contractor would not be relieved from meeting its contractual requirements. Covered contractors could presumably take the same approach for employees that only or occasionally work at a covered contractor workplace. Additionally, covered contractors should notify their contracting officer when one of their employees who works at a federal workplace has received an exception to the requirement to be fully vaccinated.
Corporate Affiliates: Second, the FAQs clarify that corporate affiliates of a covered contractor that do not otherwise qualify as covered contractors may be covered by the vaccine mandate if: “(i) either one controls or has the power to control the other; or (ii) a third party controls or has the power to control both.” Indicia of control also include interlocking management or ownership, identity of interests among family members, shared facilities and equipment, or common use of employees. Therefore, employees of a corporate affiliate of a covered contractor working at the covered contractor’s “covered contractor workplace” will be subject to the vaccine mandate. Additionally, a facility that is owned, leased, or otherwise controlled by an affiliate that is not a covered contractor will be considered a “covered contractor workplace” subject to the vaccine mandate where an employee of the affiliated covered contractor working on or in connection with a covered contract is likely to be present during the period of performance.
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