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FY 2016 OFCCP budget proposal designed to support ambitious regulatory agenda, update technology

February 26th, 2015  |  Cynthia L. Hackerott

Earlier this month, President Obama released his budget proposal for fiscal year (FY) 2016 in which he is requesting $113,687,000 and 660 full-time equivalent (FTE) employees for the OFCCP. That request represents a $7,211,000 increase from the FY 2015 funding level of $106,476,000 – an increase of about a 7 percent. It also represents an additional 10 FTE employees, which the OFCCP states will be used to strengthen its pay discrimination enforcement efforts.

According to the OFCCP’s FY 2016 Congressional Budget Justification, the agency will, at the requested funding level, complete a total of 4,290 compliance evaluations in 2016, which includes 3,840 supply and service compliance evaluations and 450 construction contractor reviews. The FY 2016 target for total completed compliance evaluations is identical to that for FY 2015.

Shift in outreach strategy. The OFCCP will continue to shift its outreach strategy from being contractor-centric to worker-focused, which it claims will strengthen its enforcement capacity. Specifically, the agency seeks to increase the number of affected class members located and remedied in its enforcement cases. It aims to continue to implement a robust language access plan to effectively communicate with key populations, including immigrants and individuals with limited English proficiency. The agency intends to accomplish this goal by translating materials into various languages and providing materials that meet the accessibility requirements under Section 508 of the Rehabilitation Act. In addition, the OFCCP intends to utilize innovative tools and technologies to engage workers and communities through an enhanced agency website, social media and other communication strategies.

Priorities. The agency states that it has the following three key priorities:

  • Supporting economic justice and opportunity and leveling the playing field for compliant employers, through robust enforcement programs that protect workers from discriminatory employment practices – with a particular focus on systemic pay discrimination and equal employment opportunity in the construction industry;
  • Improving service delivery through data and technology, including updates to the agency’s enforcement database and technology platforms that will enhance data quality and integration and increase the agency’s ability to focus limited enforcement resources on more likely violators; among other things, the OFCCP will perform critical upgrades of its obsolete case management system with dedicated funding of $3,300,000 for the continued development of an improved enforcement case management database system; and
  • Implementing its regulatory agenda, by finalizing proposed rules, operationalizing final regulations and fulfilling responsibilities set forth in executive orders and a Presidential Memorandum.

Regulatory agenda. The Department of Labor’s most recent Regulatory Agenda (Fall 2014) included the following items:

  • On December 9, 2014, the OFCCP published in the Federal Register a final rule to implement President Obama’s Executive Order (EO) 13672 which amended the existing EO 11246 to add sexual orientation and gender identity to the list of categories of protected federal contractor employees (79 FR 72985-72995). This final rule is scheduled to take effect on April 8, 2015, and it will apply to federal contractors who hold contracts entered into or modified on or after that date.
  • On January 30, 2015, the OFCCP published a Notice of Proposed Rulemaking (NPRM) to rescind its outdated regulations at 41 CFR Part 60-20 setting forth the agency’s Sex Discrimination Guidelines and to replace them with updated regulations (80 FR 5246–5279). The public has until March 31 to submit comments.
  • The OFCCP anticipates a final rule on its Equal Pay Report proposal will be published in August 2015. A NPRM was published in the Federal Register on August 8, 2014 (79 FR 46562- 46606) with corrections published on August 20 (79 FR 49260-49261) that would require some covered federal contractors and subcontractors would be required to electronically submit an annual “Equal Pay Report” on employee compensation as a supplement to the annual EEO-1 Report. The OFCCP’s proposal would revise its regulations at 41 CFR Part 60-1, which set forth the reporting obligations of covered federal contractors and subcontractors under EO 11246. The original comment deadline on the NPRM was November 6, 2014, but a notice was published on November 5, 2014 extending the comment period to January 5, 2015 (79 FR 65613-65614).
  • In September 2015, the agency intends to publish its final rule on regulations to prohibit pay secrecy. Pursuant to the provisions of a EO 13665 signed by the President in April 2014, the OFCCP published, on September 17, 2014, proposed regulations to prohibit federal contractors and subcontractors from discharging or otherwise discriminating against employees and applicants for talking about pay (79 FR 55712-55742). The comment period on this NPRM ended on December 16, 2014.
  • Also in September 2015, the OFCCP plans to issue a NPRM to revise the regulations in 41 CFR Parts 60-1 and 60-4 implementing the affirmative action requirements of EO 11246 that are applicable to federal and federally assisted construction contractors.