The OFCCP Digest - Produced by
Topic: EEO
Since the beginning of the #MeToo movement in October 2017, Congress and state and local lawmakers have introduced a series of legislation aimed at eliminating sexual harassment and abuse in the workplace. In 2018 alone, over 125 bills have been introduced by states to eliminate...more
Connie Bertram, Esq.
Connie Bertram, Esq.
Partner, Proskauer
I have two subject areas that are of significant interest to me that I have written about on various occasions over the last several years. One of these areas involves the demographic surveying that must be done for applicants and employees. The other involves the availability analyses that...more
Bill Osterndorf
Bill Osterndorf
President and Founder, HR Analytical Services
Topic: OFCCP
On May 1, 2018, the Office of Federal Contract Compliance Programs issued a Town Hall Action Plan (the "Plan"). The OFCCP's announcement regarding the Plan describes it as the result of participant feedback and insight provided during three Compliance Assistance Town Halls held in 2017...more
Heather Miller, Esq.
Senior Counsel, Constangy, Brooks, Smith & Prophete, LLP
Cara Crotty, Esq.
Partner, Constangy, Brooks, Smith & Prophete, LLP
Topic: Internet Applicant Rule
Part 1 of this article focused on the important role that "disposition codes" play in the employer's ability to perform its own meaningful adverse impact analyses and the employer's ability to defend an allegation of discrimination/demand for back pay based on the OFCCP's analyses of the...more
Ellen Shong-Bergman
Ellen Shong-Bergman
Former Director, OFCCP and Retired President, Ellen Shong & Associates
One of your best sales representatives was injured last year in an accident at home. His injuries were not very severe and he returned to work after a month of leave. However, his job performance started slipping and he began calling in sick frequently. Then you noticed that he appeared...more
Linda C. Batiste, J.D.
Linda C. Batiste, J.D.
Principal Consultant, Job Accommodation Network (JAN)
Ask the Experts
Ask the Experts is an online forum where federal contractors and subcontractors are invited to submit questions to industry experts related to OFCCP compliance, affirmative action planning, and equal employment opportunity. Simply register your company on to submit a question. Questions and answers will occasionally be featured in The OFCCP Digest for the benefit of all readers.
Question: Requiring US Citizenship and Active Clearance
Is there a best practice tagline for requiring U.S. Citizenship and active DOD Clearance on job postings?
Please be VERY careful as to citizenship. There is a difference between requiring "U.S. Persons" to work on a government contract and U.S. Citizens. To my knowledge, the Immigration and Nationality Act protects against citizenship discrimination against five separate groups: U.S. Citizens and nationals, refugees, asylees, and recent lawful permanent residents. There is a U.S. Department of Justice opinion letter that is useful as a reference on this topic:
DOL Highlights
VA Mission Act Could Limit OFCCP’s Jurisdiction
On June 6, President Trump signed the VA Mission Act of 2018, which will combine all seven of the care programs of the U.S. Department of Veterans Affairs (VA) into one program. Section 107 of the VA Mission Act states that contractors that have agreements with the VA for medical or hospital care and services will not be under OFCCP jurisdiction.
NLRB Resumes Effort to Explore Joint-Employer Rule
The National Labor Relations Board (NLRB) announced it will renew rulemaking efforts to address the standard for determining joint-employer status under the National Labor Relations Act. Opponents of the NLRB’s plan to review the issue argue that it already determined the final rule on the joint-employer issue and that further rulemaking on this subject is an effort "to evade the ethical restrictions that apply to adjudications." Continued opposition could lead to hearings and an Administrative Procedure Act legal challenge.
OFCCP Enforcement Moratorium on TRICARE Extended to 2021
The OFCCP will continue its moratorium on enforcing affirmative action requirements for TRICARE providers until May 7, 2021. The original five-year moratorium began in 2014 when OFCCP acknowledged uncertainty over how Executive Order 11246, Section 503, and VEVRAA applied to TRICARE subcontractors. Healthcare providers are not exempt from these obligations, but the moratorium means OFCCP will not pursue subcontractor authority via TRICARE or the Veterans Affairs Health Benefits Programs until the moratorium ends.

Read more DOL Highlights throughout the month for timely updates.
OFCCP Documentation Best Practices
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The OFCCP Digest is a complimentary resource featuring affirmative action, equal employment opportunity, and government compliance topics. Previous editions are available for easy reference on The OFCCP Digest Archives page. To subscribe or to provide feedback, email
The opinions expressed in this newsletter are the opinions of the individual author(s) and do not necessarily reflect the opinions of the Local JobNetwork™. The information appearing in this newsletter is meant to provide the reader with a general understanding of topics relating to OFCCP compliance requirements and is not legal advice. If you are seeking legal advice to address OFCCP compliance issues or requirements, you should consult an attorney. The Local JobNetwork™ expressly disclaims all liability with respect to actions taken or not taken based on any or all of the contents of this newsletter.