- President Obama: The President has made clear his intentions to ensure that anti-discrimination laws include bans on discrimination based on sexual orientation and gender identity. In 2014 he issued an Executive Order amending E.O. 11478, thereby banning discrimination in the military based on sexual orientation and gender identity. The President openly supports the passage of the Employment Nondiscrimination Act (ENDA), which has passed in the Senate but has not yet passed in the House. Apparently frustrated with Congress’ lack of progress, on July 31, 2014, President Obama issued Executive Order 13672, which amends Executive Order 11246 to prohibit sexual orientation and gender identity discrimination.
- The OFCCP: Along with his Executive Order, the President issued a memorandum to the OFCCP to, in turn, issue an implementing rule, which it did, and which should take effect in early April 2015. Included in this rule is a requirement that the contractors and sub-contractors include relevant language in their EEO clauses.
- President Obama: President Obama’s openly pro-worker agenda is obvious in numerous contexts. He has appointed pro-labor members to the National Labor Relations Board (NLRB), which in turn is a much more activist Board than previous ones. He has supported and urged Congress to pass the Employee Free Choice Act (EFCA), which would make it easier for workers to form unions and would significantly curtail an employer’s right to oppose them. The EFCA has stalled in the Senate. The NLRB has ruled that mandatory arbitration provisions in employment agreements violate the National Labor Relations Act (NLRA), but has been overruled by at least one federal circuit court of appeals. While it has again issued a ruling invalidating or at least curtailing such provisions, the issue is far from settled. It is only a matter of time before the issue is appealed again. Until either the U.S. Supreme Court rules on the issue or Congress passes legislation either validating or invalidating mandatory arbitration provisions, the issue will continue to be in a state of flux. Here again, the President has exerted at least a measure of control using Executive Orders as a vehicle.
The President on July 31 signed E.O. 13673, the Fair and Safe Workplaces Executive Order, which requires contractors during the bidding/solicitation process for contracts of $500,000 or more to disclose any violations of federal or state anti-discrimination, safety, wage and hour, and leave laws in the three years prior to the bidding/solicitation. Contractors may also disclose steps they have taken to correct any such violations. In addition, this Executive Order requires contractors to provide their employees with notification of wages, hours worked, overtime and deductions within each pay period; if they are being classified as independent contractors, then federal contractors must notify them as such. Finally, subject to some narrow exceptions, in contracts of $1 million or more, contractors cannot require employees to enter into binding arbitration of Title VII or other sexual harassment/assault claims. In this last prohibition, you can see that what the President has been unable to achieve in the larger context, he has managed to impose in the federal contracting world. While the President did, of course, direct the OFCCP to implement regulations, it looks like it may be awhile before we see them, as full implementation is not expected to begin until 2016 (Stay tuned for more on that in Part III of this series.)
Prior to this Executive Order the President signed E.O. 13658 in February, thereby raising the floor on federal contractor employees’ wages to $10.10 an hour. The rationale is that raising wages improves quality and efficiency of services provided to the government, lowers turnover, increases morale, and should lead to higher productivity overall on federal contracts. Note, however, that since the President cannot re-write existing contracts, this pay raise will not take effect until the start of new contracts between the contractor firms and the federal agencies. This Executive Order directed the OFCCP to issue regulations.
- The OFCCP: In October, the OFCCP issued its Final Rule implementing E.O. 13658.The rule applies to all “new contracts” with the federal government. A “new contract” is a new or replacement contract resulting from a solicitation issued on or after January 1, 2015 or is awarded outside the solicitation process on or after January 1, 2015. You can access the Final Rule here for more details.
The OFCCP found itself compelled to push off some items originally on its agenda for 2014 in order to respond to the President’s call for action on his Executive Orders targeting pay equity and non-discrimination against LGBT employees of federal contractors and sub-contractors.
The OFCCP had announced last year that it expected to issue proposed rules updating affirmative action regulations for construction contractors—specifically focusing on sex discrimination in the construction industry. Originally it was to have issued proposed rules by April. In June the OFCCP announced that contractors were not likely to see these proposed rules until January 2015. Given the absence of any indication of further action here, it is reasonable to assume that contractors will not see proposed rules this month either. Similarly the OFCCP announced its intention to update sex discrimination regulations for non-construction contractors by May, and then pushed the date back to September, only to push that item off again.
Again, the OFCCP’s failure to deliver the proposed rules in these two areas appears to be caused by the President’s issuance of other Executive Orders and memoranda directing the OFCCP to implement regulations within specific timeframes, rather than a change of heart on the OFCCP’s part. The OFCCP’s continued commitment to addressing issues of systemic discrimination against women and minorities can be seen in the settlements it procured in 2014.
The settlements from the past year show that the OFCCP continues to be aggressive in its enforcement efforts and continues to focus on issues of systemic discrimination against women and minorities. As you can see, however, the OFCCP clearly does not – and cannot – work on its own. It acts in direct response to the pronouncements, directives and actions of our President. Stay tuned for Part III of this post, where we discuss what this may mean in 2015 and beyond.