Tuesday, March 14, 2023: OFCCP Launched (Again) a Mega Construction Program
Agency Plans Compliance Assistance at Initial Project Stages & Subsequent Audits
Every OFCCP Director since Cari Dominguez in the George Herbert Walker Bush Administration (the Dad) has announced amid grand fanfare that it is launching a major compliance initiative in the construction industry by announcing a woozy-doozie wham- bam “Mega Construction Project Program.” Each announcement promises to immediately end what each OFCCP Director usually characterizes as “rampant” or “widespread” employment discrimination in the hiring of African Americans and women in the construction trades. The twist in OFCCP’s latest outing is the shift of emphasis from African Americans to women.
Note: Despite all the hoopla, OFCCP has reported one construction discrimination settlement about every three+ years. Indeed, we can only find three OFCCP Conciliation Agreements with construction contractors in the last 10 years alleging employment discrimination, and only one we can remember or find during the tenure to date of the Biden OFCCP.
The New News
OFCCP chose “Equal Pay Day” 2022 to announce another launch of its “Mega Construction Project Program.” Apart from the public relations opportunity Equal Pay Day offered, the Biden White House has asked the main federal discrimination law agencies to gear up discrimination enforcement programs for the coming spend this year of $65 Billion made available primarily to the construction industry at the tail-end of the COVID-19 pandemic pursuant to the 2021 Bi-partisan Infrastructure Investment and Jobs Act.
Under OFCCP’s latest “Mega Construction Project Program,” OFCCP officials hope to connect with the General Contractor (“GC”) on so-called Mega Construction Projects (“MCPs”). MCPs are large federal construction projects valued at $35 million or more (this number has varied over the last three decades between $25 million and at one point swelled for a moment to $100 million) – some part of which must be federal funding – and that last more than one year.
Note: $35 Million is not a large construction project and won’t buy you a very large building…and in urban areas, you could buy less than 3 miles of a four-lane federal highway laid with concrete. There are some intersections and bridge overpasses which alone would exceed $35 million in construction costs.
The idea is for OFCCP to meet with the project General Contractor BEFORE the work begins and before the GC’s subcontractors hire up for the job to make sure the subcontractors are aware of their non-discrimination duties by offering “compliance assistance” to the GC and its subcontractors.
“Engagement through the Megaproject Program can help provide women with access to good jobs in traditionally male-dominated occupations like the construction trades and can help to close gender and racial wage gaps,” OFCCP Director Jenny Yang asserted in her blog for Equal Pay Day 2023.
For their part, General Contractors are likely to look at OFCCP with some surprise since almost all of them are having problems themselves, as are their subcontractors, finding enough qualified construction craft workers to perform the work. They are not excluding anybody from working with any semblance of construction craft experience. Indeed many contractors are not bidding new work for lack of human resources and many are delaying the onset of work hoping to find more construction employees to hire.
For the initial group of designated Megaprojects, OFCCP reports that it will work with the U.S. General Services Administration and the U.S. Department of Transportation – two Bipartisan Infrastructure Law (“BIL”) funding agencies. For each MCP, OFCCP will provide free, continuous, on-the-ground assistance to help project owners with stakeholder outreach and information sharing, providing connections to recruitment sources in the community. “From the earliest stages of a designated Megaproject, OFCCP will engage a wide range of stakeholders in the community – including worker advocates, community-based organizations, and local recruitment sources – to remove barriers to opportunity and foster strong connections and build trust with the community,” the announcement stated.
OFCCP’s 34-page full Congressional Budget Justification (“CBJ”) further detailed the agency’s plans for its Mega Construction Project Program. “After launching the Megaproject Program in FY 2023 with an initial list of BIL-funded projects, in FY 2024 OFCCP will continue to work with federal agencies awarding BIL, CHIPS and Science Act, and Inflation Reduction Act funds to strengthen interagency collaboration, clarify the mechanisms and instruments by which qualified construction projects will be identified and selected, and ultimately broaden the pool of construction projects participating in the program,” the agency stated.
Megaproject Compliance Evaluation Plans
In Tuesday’s announcement, OFCCP also said it will conduct compliance reviews to evaluate contractors’ anti-discrimination and equal opportunity practices. “Once ground has broken on a Megaproject and the work has progressed for several months, OFCCP, through a neutral process, will schedule contractors for compliance evaluations,” the agency also noted in its CBJ. “To support this work, OFCCP will hire 36 employees, including Megaproject Regional Coordinators, Megaproject Leads (district level), Megaproject Liaisons with funding agencies, Industry Specialists with knowledge of key industries and trades, and Data Scientists,” the agency’s CBJ explained.
The Cloud Hanging Over This Second Biden OFCCP Construction Industry Enforcement Re-Launch
A federal court entered a judgment against OFCCP in a lawsuit it filed in 2017 (part of “the surge” of retaliatory lawsuits OFCCP filed against federal contractors as the Obama Administration was leaving office) against a mid-Atlantic construction contractor for failing to cooperate with an OFCCP audit the contractor perceived to be unlawful. OFCCP’s ill-conceived lawsuit back-fired, however, on the agency when OFCCP’s implementation of its Mega Construction Project Program during the Obama OFCCP era was found to have unconstitutionally targeted construction contractors for audit. The Court made its finding despite OFCCP’s false public claims that it was selecting construction contractors using only “neutral” selection protocols. OFCCP then stopped all construction audits nationwide while the Trump Administration revamped the entire OFCCP construction program just in time for the arrival of the Biden Administration.
The Biden OFCCP re-launched the agency’s construction program with the issuance of a specialized Corporate Scheduling Announcement List for construction contractors. So far so good. The re-launch fell into immediate disrepair, however, with OFCCP Compliance Officers apologizing to most construction contractors they were auditing that they had had no training and were confused about what they were supposed to do, and when. There were also many reports of OFCCP summarily closing construction audits in mid-stride with the audit only half completed. (No contractors complained about that.)
There were also many reports that OFCCP Compliance Officers (“COs”) in the last round of these ill-fated construction audits candidly advised the contractors they were auditing that the COs did not understand how construction companies operated and were confused about what documents they should examine. Many of the audits also occurred toward the tail end of the construction activity when few, and sometimes none, of the construction crafts were still on the job. There were numerous humorous reports, too, of OFCCP auditors also showing up on wet mud construction projects in street shoes and high heels without hard hats, steel-toed boots or adequate protective gear that OSHA standards required. The onset of many audits were delayed to allow the contractor to scamper around their supply shops to properly outfit and provision OFCCP investigators with sufficient protective gear to allow them to go out on a project site to see the work in progress and to interview employees or access construction H.R. personnel. We also heard the story about an OFCCP District Director who insisted in advance of an audit on a federal military property that he would NOT need clearance and proper protective equipment to get on base. Rather, he assured the construction contractor base military personnel would simply “waive him through” on the strength of his OFCCP credentials. Well, that did not quite happen, of course, so they called that one a mulligan and set another day to start that audit.
One senior OFCCP official internally called the OFCCP program “a mess.” Thereafter, the agency quickly slowed its audits of construction constructors in 2022 so the agency could regroup. OFCCP is now, again, emerging from the rubble of its last two efforts at driving a construction enforcement program forward. The construction community is crossing its fingers that OFCCP has now trained its employees both as to the way the industry operates and also as to OFCCP procedures, forms, construction audit protocols and needed personal protective equipment when on a job site.