A Department of Labor (DOL) “Agency Rule List” for Fall 2011 indicates that the OFCCP expects to finalize its pending proposal to amend it regulations implementing VEVRAA in July 2012 and expects to issue proposed revisions to its construction contractor regulations and its sex discrimination guidelines in April 2012. The list, which appears on the Office of Management and Budget’s and General Services Administration’s www.RegInfo.gov website, includes OFCCP items that are scheduled for review or development during the next twelve months or that have been finalized since the DOL’s Spring 2010 semiannual regulatory agenda was announced on July 7, 2011.

Prerule stage: Non Discrimination In Compensation: Compensation Data Collection Tool (RIN: 1250-AA03). On August 10, 2011, the OFCCP published an Advance Notice of Proposed Rulemaking (ANPRM) in the Federal Register (76 FR 49398) regarding the agency’s consideration of the development of a new strategic compensation data collection tool that will effectively identify contractors that are likely to violate EO 11246. In addition, the data collection tool may play a key role in the agency’s establishment-specific, contractor-wide, and industry-wide analyses. Through publication of the ANPRM, the OFCCP sought from stakeholders on issues relating to the scope, content, and format of the tool to ensure that it is an effective and efficient data collection instrument. The comment period on the ANPRM closed on October 11, 2011. The agency plans to complete analysis on these comments in March 2012.

Proposed Rule Stage: Construction Contractor Affirmative Action Requirements (RIN: 1250-AA01). The OFCCP plans to issue a Notice of Proposed Rulemaking (NPRM) to revise the regulations in 41 CFR Parts 60-1 and 60-4 implementing the affirmative action requirements of Executive Order 11246 that are applicable to federal and federally assisted construction contractors. The regulations implementing construction contractor affirmative action obligations under EO 11246, as amended, were last revised in 1980. According to the agency, these regulations have proven ineffective at making meaningful progress in the employment of women and certain minorities in the construction industry. The OFCCP notes that analysis of 2006 to 2008 data from the Census Bureau’s American Community Survey for 27 on-site construction occupations reveals a significant disparity between the percentage of women in construction occupations in the construction industry and the percentage of women in construction occupations in all other industries. The representation of African Americans in the construction industry is substantially less than would be expected given their representation in all other industries. For example, in 23 of the 27 occupations analyzed, disparities were found in the representation of African Americans.

This NPRM would remove outdated regulatory provisions, propose a new framework for implementing affirmative action requirements in the construction industry, and propose other revisions to the affirmative action requirements that reflect the realities of the labor market and employment practices in the construction industry today. The proposed rule would also propose standards for designating projects “mega construction projects.” There may be some additional costs to contractors as a result of the increased scope of required actions. The benefits would likely include increased diversity in construction workplaces and increased opportunities for women and minorities to obtain on-site construction jobs. More detailed cost and benefit analyses will be made as the NPRM is developed.

The OFCCP plans to issue this NPRM in April 2012.

Proposed Rule Stage: Affirmative Action and Nondiscrimination Obligations of Contractors and Subcontractors; Evaluation of Recruitment and Placement Results under Section 503 (RIN: 1250-AA02). The OFCCP has published a NPRM to revise the regulations in 41 CFR Parts 60-741 that implement the nondiscrimination and affirmative action provisions of section 503 of the Rehabilitation Act of 1973, as amended. For the first time ever, the OFCCP is suggesting that federal contractors would be required to set a hiring goal of having seven percent of their employees be workers with disabilities in each job group of the contractors’ workforce, but it is soliciting comments on the potential use of a utilization range between four and ten percent. To annually evaluate their utilization of individuals with disabilities, the NPRM proposes that contractors use the job groups established for utilization analyses under their Executive Order (E.O.) 11246 affirmative action programs. The proposed goal is derived primarily from disability data collected as part of the Census Bureau’s American Community Survey. This NPRM would also amend the regulations to require that federal contractors and subcontractors increase linkages and conduct more substantive analyses of recruitment and placement actions taken under section 503. It would also make revisions to recordkeeping requirements.

An ANPRM was published in the Federal Register on July 23, 2010 (75 FR 43116) and the comment period on the ANPRM ended on September 21, 2010. The NPRM was published in the Federal Register on December 9, 2011 (76 FR 77056) and the comment period ends on February 7, 2012.

Proposed Rule Stage: Sex Discrimination Guidelines (RIN: 1250-AA05). The OFCCP’s regulations at 41 CFR Part 60-20 set forth the interpretations and guidelines for implementing EO 11246 in regard to promoting and ensuring equal opportunities for all persons employed or seeking employment with government contractors and subcontractors without regard to sex. This nondiscrimination requirement also applies to contractors and subcontractors performing under federally assisted construction contracts. The guidance in Part 60-20 is more than 30 years old. The OFCCP will issue a NPRM to create sex discrimination regulations that reflect the current state of the law in this area.

The OFCCP plans to publish this NPRM in April 2012.

Final Rule Stage: Affirmative Action and Nondiscrimination Obligations of Contractors and Subcontractors; Evaluation of Recruitment and Placement Results under the Vietnam Era Veterans Readjustment Assistance Act of 1974 as amended (RIN: 1250-AA00). The OFCCP has issued a NPRM that would revise the regulations in 41 CFR Parts 60-250 and 60-300, implementing the nondiscrimination and affirmative action provisions of VEVRAA. This NPRM would strengthen the affirmative action requirements for federal contractors and subcontractors. It would amend the regulations to require that federal contractors and subcontractors conduct more substantive analyses of recruitment and placement actions taken under VEVRAA and would require the use of numerical targets to measure the effectiveness of affirmative action efforts. The NPRM would also make revisions to recordkeeping requirements.

The OFCCP published this NPRM in the Federal Register on April 25, 2011 (76 FR 23358) and the comment period, which was originally June 22, 2011, was extended to close on July 11, 2011 (76 FR 36482). The agency plans to publish its final rule in July 2012.

The OFCCP contact on these matters is: Debra A. Carr, Director, Division of Policy, Planning and Program Development, Department of Labor, Office of Federal Contract Compliance Programs, Room C3325, 200 Constitution Avenue NW, Washington, DC, 20210. Phone: 202 693-0103. E-mail: ofccp-public@dol.gov.