OMB Archives » Biddle Consulting Group News

OMB Finally Approves New And Revised OFCCP Scheduling Letters

April 6, 2020 By Matt Nusbaum

As we reported previously, the OFCCP submitted final revised scheduling letters for “regular” audits, compliance checks, and Section 503 (disability) focused reviews, along with a new scheduling letter for VEVRAA (veteran) focused reviews, to the White House Office of Management and Budget (OMB) for approval back in July, 2019. Nearly nine months later, OMB has finally approved these new scheduling letters for use.

Most notably, the OFCCP can now begin scheduling veteran focused reviews in earnest. OMB approval is required for any “information collection” the agency uses for more than 10 people. The FY 2019 Corporate Scheduling Announcement List (CSAL) contains 500 contractor establishments or functions selected but not yet scheduled for review.

The OFCCP solicited public comment on their originally proposed revised and new scheduling letters, and the federal contracting community responded energetically to several proposed changes such as:

Submitting actual copies of compensation analyses;
Calculating availability and setting placement goals by specific race/ethnicity categories;
Submission of promotion “pools;” and
Several other changes viewed by contractors as overly burdensome and overreaching.

The agency backed off most of the more controversial changes and submitted revised documents to the OMB for final approval. Those revised documents are the ones that have now been approved for use.

BCGi will follow up with more detail and analysis of the revised and new scheduling letters in the near future. In the meantime, the documents themselves are available online for download here.

EEOC to Launch New “Guidance Portal” in Response to Executive Order 13891 – More to Come

February 19, 2020 By Matt Nusbaum

The EEOC will publish a notice in tomorrow’s Federal Register announcing the launch of a new “searchable, indexed database containing all EEOC guidance documents currently in effect.” EEOC guidance documents have not historically been difficult to find, but this new, centralized database is in response to Executive Order 13891 issued by President Trump on October 9, 2019.

The Executive Order takes issue with the practice of Executive Branch agencies imposing legally binding requirements on the public outside of the rulemaking processes contained in the Administrative Procedures Act (APA) and the Paperwork Reduction Act (PRA), arguing that such practices usurp Congress’s Constitutional legislative power. Guidance documents can be used to clarify existing obligations contained in the laws passed by Congress, but cannot be used to effectively create new law. However, the line between clarification and new law is not always clear.

Nonetheless, the Trump Administration has explicitly ordered Executive agencies to treat guidance documents “as non-binding both in law and in practice, except as incorporated into a contract.” Agencies are also instructed to “take public input into account when appropriate in formulating guidance documents,” and to make those documents “readily available to the public.”

The Executive Order directs the Office of Management and Budget (OMB), an Executive Branch agency, to “issue memoranda” implementing the order, which are presumably binding on all Executive agencies. In turn, the Executive agencies have 120 days from the issuance of OMB memoranda to review their guidance documents, rescind any they deem should be no longer be in effect, and to launch their guidance document databases. On October 31, 2019, OMB issued Memorandum M-20-02, giving Executive agencies until February 28, 2020 to comply.

The EEOC and the Department of Defense appear to be the first out of the gate. The EEOC’s guidance portal will go live on the February 28 deadline and will be located at www.eeoc.gov/guidance. The Department of Defense has already launched its “portal” at https://open.defense.gov/Regulatory-Program/Guidance-Documents/, though the announcement is not set to be published in the Federal Register until tomorrow.

The Executive Order also instructs Executive agencies to implement regulations (or revise existing regulations) regarding processes and procedures for issuing new guidance documents. Agencies will be required to clearly state that guidance is non-binding, and provide procedures for the public to petition for withdrawal or modification of a document. If a guidance document is deemed “significant,” agencies must also provide for a period of public notice and comment of at least 30 days and seek approval from the Office of Information and Regulatory Affairs within OMB. This provision effectively makes “significant guidance documents,” as defined in the Executive Order, subject to a mini-PRA.

What does all this mean in practical terms? That remains to be seen, but it should increase transparency. And it should increase stability and predictability for regulated communities. It will also likely lead to a lot of guidance revision and rule-making (or pseudo-rule-making). In other words, there could be a lot of changes coming down the pike.

One practical example jumps to mind regarding federal contractors. Contractors subject to the VEVRAA and/or Section 503 affirmative action regulations must annually prepare a “data collection analysis” that includes total headcounts of all “job openings,” “jobs filled,” and “hires” in the preceding 12 months. The OFCCP’s regulations do not define those terms. Rather, those terms are defined somewhat confusingly and inconsistently in the agency’s “FAQs,” which are guidance documents under the Executive Order. The OFCCP should explicitly treat those definitions as non-binding, meaning contractors do not have to follow them, and contractors should soon have a clear avenue for requesting that the OFCCP either rescind or revise those definitions.

But the potential impact of the Executive Order is myriad. At the very least, lawyers will be sharpening their pencils over any potential enforcement action that isn’t tied to an explicit regulatory citation, which could get very interesting. For instance, what is the OFCCP’s legal basis supporting the popular violation of “insufficient outreach” under the AAP regulations for women and/or people of color? This author has never been able to find it. We will all just need to buckle-up and see where all this leads.

NLRA Rights Poster Submitted to OMB for Re-Approval

August 21, 2019 By Matt Nusbaum

The Department of Labor (DOL) has published notice in the Federal Register that the “NLRA Rights” poster has been submitted to the White House Office of Management and Budget (OMB) for review and continued use without change. OMB is likely to approve the poster for another three-year period and, assuming they do, nothing will happen.

Officially called the “Notification of Employee Rights Under Federal Labor Laws Complaint Process,” the poster is required to be displayed by federal contractor employers, subject to certain exceptions, and notifies employees of their right to organize and bargain collectively with their employers. Note that this is in addition to the “EEO is the Law” poster.

Under the Paperwork Reduction Act (PRA) “information collection requests,” which can include required notices and posters, must be reviewed by OMB to ensure that the requirement is necessary and that the burden on employers is balanced with the public interest. Typically OMB will approve the use of such information collection requests for a period of three years.

Approval for the current NLRA Rights poster is set to expire at the end of this month, on August 31, 2019. However, approval for use is automatically extended if necessary, so long as the agency submits the material for review prior to the expiration date. So there will be no “gap” in the requirement and covered federal contractor employers will still be required to display the poster after August 31 if OMB does not provide approval before that date.

For more information about this requirement, visit DOL’s website here. If you are interested in submitting comments regarding DOL’s request you may do so online at RegInfo.gov. Comments are due by September 20, 2019. And of course, Biddle consultants are available if you have any questions or concerns.