On September 15, 2014, the Office of Federal Contract Compliance Programs (OFCCP) released a proposed rule prohibiting federal contractors and subcontractors from discriminating against an employee or applicant who discusses, discloses or inquires about pay, as instructed by President Obama in his April 8, 2014 memorandum discussed here.

The proposed rule amends Executive Order 11246 and its Equal Opportunity Clause that outlines information required in federal contracts and subcontracts. Under the amendment, federal contractors and subcontractors must not retaliate or discriminate against employees or applicants who discuss, disclose or inquire about their pay or the pay of other employees or applicants. However, the proposed rule carves out two possible defenses for employers facing discrimination claims: (1) when the disclosure is based upon information gathered while performing essential job functions, such as with human resources professionals; or (2) when the discussions, disclosures, or inquiries constitute disruptive behavior in violation of workplace policies. The proposed rule further requires that federal contractors and subcontractors add a nondiscrimination provision into their current handbooks and distribute the provision.

The rule will be published in the Federal Register on September 17, 2014. Should you want to comment on the proposed rule, you must do so within 90 days of the publication.