Labor & Employment Law Daily OFCCP’s RFI offers contractors a voluntary compliance route under President Trump’s controversial diversity training order
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Friday, October 23, 2020

OFCCP’s RFI offers contractors a voluntary compliance route under President Trump’s controversial diversity training order

By Pamela Wolf, J.D.

The agency will exercise enforcement discretion to leave contractors alone if they correct any training and materials found “noncompliant.”

The DOL’s Office of Federal Contract Compliance Programs is asking for comments, information, and materials from the public about workplace trainings that involve race or sex stereotyping or scapegoating. The request for information (RFI), which is scheduled for publication in the Federal Register on October 22, 2020, seeks information about federal contractor and subcontractor training, workshops or similar programing provided to employees. The OFCCP is encouraging federal contractors and subcontractors, as well as their employees, to provide materials in response to the RFI.

The Department of Labor said that it will use the information submitted to develop materials and to focus its enforcement of President Trump’s Executive Order 18950, “Combatting Race and Sex Stereotyping,” which is intended to end what Trump characterized as “training sessions based on race and sex stereotyping and scapegoating” in the federal workforce, the Uniformed Services, and among federal contractors (see Trump takes action to restrict diversity training, September 23, 2020).

RFI specified in EO. Among other things, the executive order (EO) directed that within 30 days of its issuance the OFCCP Director shall publish an RFI “seeking information from Federal contractors, Federal subcontractors, and employees of Federal contractors and subcontractors regarding the training, workshops, or similar programming provided to employees” and requesting “copies of any training, workshop, or similar programing having to do with diversity and inclusion as well as information about the duration, frequency, and expense of such activities.”

Information and materials requested. In its RFI, the OFCCP is seeking information and materials concerning any or all of the following categories, if applicable:

1. Workplace trainings that promote, or could be reasonably interpreted to promote, race or sex stereotyping.
2. Workplace trainings that promote, or could be reasonably interpreted to promote, race or sex scapegoating.
3. The duration of any workplace training identified in categories 1 or 2.
4. The frequency of any workplace training identified in categories 1 or 2.
5. The expense or costs associated with any workplace training identified in categories 1 or 2.

The OFCCP also requests input on any or all of the following questions, if applicable:

6. Have there been complaints concerning this workplace training? Have you or other employees been disciplined for complaining or otherwise questioning this workplace training?
7. Who develops your company’s diversity training? Is it developed by individuals from your company, or an outside company?
8. Is diversity training mandatory at your company? If only certain trainings are mandatory, which ones are mandatory and which ones are optional?
9. Approximately what portion of your company’s annual mandatory training relates to diversity?
10. Approximately what portion of your company’s annual optional training relates to diversity?

Assistance for voluntary submissions of materials. The OFCCP is encouraging federal contractors and subcontractors questioning whether their workplace trainings, workshops, or similar programs are compliant with EOs 13950 or 11246 to voluntarily submit information and materials in response to the RFI. The OFCCP will provide compliance assistance as requested to federal contractors and subcontractors that voluntarily submit such information or materials.

Enforcement discretion. Consistent with law, the OFCCP will exercise its enforcement discretion and not take enforcement action against federal contractors and subcontractors that voluntarily submit information or materials in response to the RFI, as to submitted information or materials and potential noncompliance with EOs 13950 or 11246, provided that the contractor or subcontractor promptly comes into compliance with the EOs as directed by the OFCCP.

A federal contractor or subcontractor may choose the above-described enforcement discretion only if the relevant information or materials are submitted to the OFCCP by one of the contractor’s or subcontractor’s executives, owners, or legal representatives with actual authority to legally bind the contractor or subcontractor in agreements with the United States Government.

The fact that a worker employed by the contractor or subcontractor may have also submitted the same (or substantially the same) information or materials to OFCCP, or submitted a complaint based on such information or materials, will not disqualify the contractor or subcontractor from choosing the types of compliance assistance and enforcement discretion described in the RFI.

Refusal to correct. But the OFCCP may take enforcement action as to information or materials submitted by employees in response to the RFI if the contractor or subcontractor refuses to correct noncompliant materials after receiving compliance assistance.

Where a federal contractor or subcontractor voluntarily submits information or materials in response to the RFI is determined by the OFCCP to have noncompliant materials, and the contractor or subcontractor refuses to correct the issue after compliance assistance is provided, the OFCCP may take enforcement action against the contractor or subcontractor if the OFCCP later receives the materials through a separate source, such as a neutrally scheduled audit, in connection with a complaint, or if submitted by an employee in response to the RFI.

Strictly voluntary. The OFCCP noted that as to all other federal contractors and subcontractors, there are no adverse legal consequences for choosing not to participate in the RFI; it is strictly voluntary. The RFI simply offers federal contractors and subcontractors an opportunity in the exercise of the OFCCP’s enforcement discretion to come into compliance with their legal obligations to the extent they have any concerns.

EO 13950 landing page. In a press release, the OFCCP noted that it has launched an EO 13950 landing page that includes answers to frequently asked questions and links to the EO and the RFI. The landing page also includes detailed information about filing a complaint through the OFCCP’s new hotline.

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