OFCCP Week In Review: August 2022 #3

DirectEmployers Association

DirectEmployers Association

The DE OFCCP Week in Review (WIR) is a simple, fast and direct summary of relevant happenings in the OFCCP regulatory environment, authored by experts John C. Fox, Candee Chambers and Cynthia L. Hackerott. In today’s edition, they discuss:

  • Senators Warren and Luján Urged USDOJ To Use Dormant Powers to Suspend & Debar Corporate “Criminals” From Federal Contracts
  • USDOL Published A Notice Seeking Public Comment On Multiple Studies Of USDOL-Funded Programs
  • USDOL’s ODEP Announced a Twitter Chat And Online Dialogue Regarding The National Apprenticeship System
  • ODEP Promoted Its PIA New Apprenticeship EEO Toolkit
  • USDOL Announced That Tuskegee University Will Host Department’s HBCU Southeast Hiring Summit
  • Looking Ahead: Upcoming Date Reminders

Thursday, August 11, 2022: Senators Warren and Luján Urged USDOJ To Use Dormant Powers to Suspend & Debar Corporate “Criminals” From Federal Contracts

U.S. Senators Elizabeth Warren (D-MA) and Ben Ray Luján (D-NM) sent an unusually strongly worded letter to top U.S. Department of Justice (DOJ) officials urging them to use the Department’s authority to ban from government contracting those corporations which fail to comply with government contracting laws. The letter began with these aggressive words:

“We write regarding our ongoing concern that the federal government is failing to use key tools in its arsenal against corporate criminals, allowing them to slide by with penalties and settlements that do not fit the gravity of their crimes and that encourage lawbreaking and recidivism by big business.”

Addressed to Attorney General (AG) Merrick Garland and Deputy AG Lisa O. Monaco, the letter expressed the legislators’ concern about the DOJ’s “inability or unwillingness to use its authority to suspend or debar corporate criminals from the government contracting process.” The lawmakers asserted that the Department could debar entities for a wide range of transgressions, even when the alleged wrongdoing falls outside a company’s federal contracting activities.

Senator Warren repeated her concern in a joint press release with Senator Lujan: “We cannot allow these corporate entities to continue to engage in criminal misconduct and get by with a mere slap on the wrist,” she said. “The Department of Justice can and should expand its use of these suspension and debarment authorities to protect the use of government resources and discourage recidivism by big business.”

“No one is above the law. Corporate criminals must be held accountable, and it’s critical that the Justice Department utilizes its authority to ensure that no one can abuse public trust,” said Senator Luján via the press release.

DOJ authority to debar federal contractors derived from FAR regulations

The agencies in the FAR Council—the Department of Defense (DoD), the Government Services Administration (GSA), and the National Aeronautical and Space Administration (NASA)—are the federal agencies most heavily involved in entering into contracts to procure goods and services for the federal government. The Federal Acquisition Regulation (FAR) is the principal set of rules in the Federal Acquisition Regulations System, which governs the acquisition process through which the federal government purchases goods and services.

According to the Senators’ letter, the (FAR) “permits an agency to debar an entity if it is convicted of or receives a civil judgment for “’any…offense indicating a lack of business integrity or business honesty’” (citing 48 C.F.R. 9.406-2(a)). Moreover, an agency can debar an entity based only on a “preponderance of the evidence” for “any other cause of so serious or compelling a nature that it affects the present responsibility of the contractor or subcontractor” (48 C.F.R. 9.406-2(b)). The lawmakers further noted that “[b]efore or while a debarment is being considered, agencies can suspend a contractor if there is “’adequate evidence’” that suspension is necessary to protect the government’s interests” (48 C.F.R. 9.407-1(b)(1)).

Settlement agreements are not enough to stop egregious offenders, the Senators asserted, citing three companies as examples

OFCCP Week In Review Bonus Feature | Senators Warren and Luján Urged USDOJ To Use Dormant Powers to Suspend & Debar Corporate “Criminals” From Federal Contracts

Friday, August 12, 2022: USDOL Published A Notice Seeking Public Comment On Multiple Studies Of USDOL-Funded Programs

The U.S. Department of Labor’s Chief Evaluation Office (CEO) posted a notice in the Federal Register (87 FR 49889) requesting public comment on its efforts to design and conduct evaluations of USDOL-funded programs. The agency seeks a “generic clearance” to “engage in a variety of formative data collections with researchers, practitioners, TA providers, service providers[,] and potential participants throughout the field.” The populations the Department’s CEO wants to study include: “key stakeholder groups involved in DOL projects and programs, state or local government officials, service providers, participants in DOL programs or similar comparison groups, experts in fields pertaining to DOL research and programs, or others involved in conducting DOL research or evaluation projects.”

The Departments listed four goals behind this information collection request (ICR): (1) Inform the development of CEO research; (2) maintain a research agenda that is rigorous and relevant; (3) ensure that research products are as current as possible; and (4) inform the provision of technical assistance. The USDOL CEO anticipates “using a variety of techniques including semi-structured discussions, focus groups, surveys, and telephone or in-person interviews, in order to reach these goals.” The findings from this data collection can inform and support future and current research, the Department stated, but the findings “are not highly systematic or intended to be statistically representative or otherwise generalizable.”

Per the Office of Management and Budget’s (OMB) standard requirements, the Labor Department will submit a change request for each individual data collection activity under the generic clearance. “Each request will include the individual instrument(s), a justification specific to the individual information collection, and any supplementary documents. OMB should review requests within 10 days of submission,” the notice explained.

On March 8, 2021, the DOL CEO published its initial notice regarding this ICR in the Federal Register (86 FR 13401) seeking public comments. The 60-day comment period for that notice closed on May 7, 2021. In that notice, the agency included the following chart regarding estimated burden hours:

Estimated Annual Burden Hours
Type of instrument (form/activity) Number of respondents Number of responses per respondent Total number of responses  Average burden time per response (hours) Estimated burden hours 
Semi-structured discussions and focus groups 3,000 1  3,000 1  3,000
Interviews 1,500 1  1,500 1 1,500
Questionnaires/surveys 1,000 1 1,000 1 1,000
 Total 5,500   5,500   5,500

Written comments on the current Notice are due on or before September 12, 2022.

In Brief

Friday, August 12, 2022: USDOL’s ODEP Announced a Twitter Chat And Online Dialogue Regarding The National Apprenticeship System

The U.S. DOL’s Office of Disability Employment Policy (ODEP) announced in its weekly newsletter that it is hosting a national online dialogue exploring ways to strengthen the National Apprenticeship System and further its reach into new sectors and historically underrepresented communities. Stakeholders may participate on Twitter by joining the @ePolicyWorks account on August 16 at 1:00 p.m. ET. The dialogue, which honors this month’s 85th anniversary of the National Apprenticeship Act, will discuss the nation’s current apprenticeship system and explore ideas for future programs. Thereafter, beginning August 18, the public may join the USDOL’s national online dialogue, “Advancing the National Apprenticeship System.” ODEP encourages participants to share their ideas on policies, practices, strategies, and approaches that will expand the reach and availability of inclusive apprenticeships and address any barriers to their success.

Friday, August 12, 2022: ODEP Promoted Its PIA New Apprenticeship EEO Toolkit

In its weekly newsletter, the USDOL’s Office of Disability Employment Policy (ODEP) reminded readers that The U.S. Department of Labor had previously set an “aspirational” utilization goal for sponsors of Registered Apprenticeship Programs (“RAPs”) that 7% of individuals enrolled be individuals with disabilities. To that end, the USDOL-funded Partnership on Inclusive Apprenticeship (PIA) now offers an Apprenticeship Equal Employment Opportunity Toolkit. This resource features tips for apprenticeship sponsors on equal opportunity policies, recruiting apprentices, preventing harassment, providing reasonable accommodations, developing an affirmative action program (required of sponsors with five or more apprentices enrolled in a RAP), and encouraging self-identification of disabilities.

See also, our related story from earlier this month: “ODEP Published Notice Seeking Public Comments on Four-Year Study to Support Partnership on Inclusive Apprenticeship.”

Friday, August 12, 2022: USDOL Announced That Tuskegee University Will Host Department’s HBCU Southeast Hiring Summit

USDOL announced its Historically Black Colleges and Universities (HBCU) Southeast Region Summer Summit will take place at Tuskegee University on August 17, 2022. The Department’s HBCU Summer Summits grew out of President Biden’s Executive Order 14041 (86 FR 50443), “White House Initiative on Advancing Educational Equity, Excellence, and Economic Opportunity Through Historically Black Colleges and Universities. The summits are designed to “engage faculty, career services professionals[,] and students to gather input for new training, mentorship, internship programs[,] and opportunities to promote career development and long-term employment opportunities with the Department of Labor,” the announcement stated.

To see the event agenda and register, go to: https://www.eventbrite.com/e/southeast-hbcu-summer-summits-session-2-tickets-385187796067

For more background on E.O. 14041, see our WIR on Friday, September 3, 2021: “President Biden Issued EO On White House Initiative on Advancing Educational Equity, Excellence, and Economic Opportunity through Historically Black Colleges and Universities.”

Looking Ahead:
Upcoming Date Reminders

Thursday, August 18, 2022: Philadelphia ILG Quarterly Meeting: “How to Connect your AAP to your Company’s Diversity, Equity and Inclusion Efforts” (presenters Candee J. Chambers and John C. Fox)

Monday, August 22, 2022: EEOC public meeting at City of Buffalo (New York) Common Council Chambers, Buffalo City Hall:  https://public-inspection.federalregister.gov/2022-17661.pdf

Friday, September 30, 2022: 2022 VETS-4212 filing deadline. The reporting cycle began on August 1, 2022:  https://www.dol.gov/agencies/vets/programs/vets4212

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