OFCCP and Affirmative Action Compliance
Employment policies and regulations can be complex and sometimes overwhelming, especially for federal contractors who are subject to comprehensive nondiscrimination and affirmative action obligations enforced by the US Department of Labor. When these obligations are not met, employers can face liability and other unfavorable consequences.
Similarly, as businesses in all industries and communities are implementing and enhancing diversity, equity, inclusion, and accessibility (DEIA) programs, it is important to identify DEIA best practices while complying with existing employment and labor laws.
Our lawyers have extensive knowledge and experience to help clients mitigate risk and identify compliance-focused best practices. The areas in which we counsel clients include:
OFCCP Affirmative Action and Compliance
Our comprehensive Office of Federal Contract Compliance Programs (OFCCP) practice advises federal contractors in all aspects of OFCCP compliance, including jurisdiction, affirmative action compliance, affirmative action certification, DEIA program development, nondiscrimination obligation compliance, annual self-audits and audit defense, as well as litigation, rulemaking comments and information collections, and OFCCP exemptions and programs.
Jurisdiction
Across industries, we assist clients in determining whether they are a federal contractor or subcontractor subject to OFCCP’s regulations, including applicability of Executive Order (EO) 11246, Section 503, and the Vietnam Era Veterans' Readjustment Assistance Act (VEVRAA) based on contract size and employee count. We also advise clients on exemptions and exclusions to jurisdiction, address jurisdiction where mergers or acquisitions involve a federal contractor or subcontractor and provide guidance to potential contractors and subcontractors on obligations/requirements and contesting inclusion on Corporate Scheduling Announcement Lists (CSALs) where jurisdiction is unclear.
Affirmative Action Compliance and Certification
As affirmative action compliance requirements evolve, we provide federal contractor clients with guidance on how to develop affirmative action plans/programs, helping companies comply with these requirements and other affirmative obligations.
Affirmative Action Plan Certification
We advise clients across industries on their affirmative action programs, including identification of impediments to certification, correction of impediments to certification, identification of the certifying executive or employee, participation in the certification process, and defending certification if audited.
DEIA Counseling and Compliance
Businesses that are motivated to demonstrate their commitment to diversity, equity, and inclusion in the workplace are turning to counsel to determine how to do so legally and effectively. With numerous federal, state, and local employment laws and regulations potentially impacting DEIA initiatives, members of our Labor, Employment, and Workplace Safety practice can work with clients to develop and achieve their DEIA initiatives in a manner that complies with Title VII and EO 11246, and without the use of quotas or preferences based on race, ethnicity, or gender, or other protected classes, which are strictly prohibited.
Navigating this landscape involves more than just Title VII considerations, and it is easy to make a legal misstep. Our lawyers have deep knowledge and experience to help clients avoid legal vulnerabilities associated with creating, updating, or communicating their DEIA programs. We help clients develop programs that are legally compliant while meeting their business goals and objectives. Our lawyers provide clients with practical solutions and focused strategies to address these complex and highly sensitive topics.
Areas in which we can provide counseling and compliance guidance to companies include:
- Annual Auditing
- Diversity Goal Setting
- Training
- Disability Inclusion and Programs
- Employer Outreach and Recruitment Advice
- Employer Best Practices Advice
- Nondiscrimination Obligation Compliance
- Audit Defense
OFCCP-Related Litigation
Through business-focused advice and proactive counseling on the changing employment landscape, we help clients minimize the potential for lawsuits and increase the likelihood of success when they occur.
We defend clients in litigation before Administrative Law Judges in all types of cases, including access, merits, and complaint cases. We also handle appeals to the Administrative Review Board and the Secretary of Labor. We represent clients in litigation in federal court; in Freedom of Information Act (FOIA) and reverse FOIA matters to protect confidential information from disclosure; in Administrative Procedures Act (APA) litigation; and independent federal actions such as private class actions, EEOC actions, and challenges to the OFCCP’s authority and rulemaking and information collections. Our OFCCP team can comment on rulemaking and information collections, representing commenters during rulemakings and information collections, submitting comments and preserving arguments for potential litigation, and challenging rulemakings and information collections in court. In addition, we counsel clients across industries in applying for OFCCP exemptions and programs, TRICARE exclusion or exemption, national security exemption, national interest exemption, religious employer exemption, single entity waiver or exemption, other exemptions and exclusions. Our team can help advocate for participation in early resolution programs and provide guidance for applying for Functional Affirmative Action Program and awards programs.
