The proposed regulatory agenda of the Office of Federal Contract Compliance Programs (OFCCP) now seems unlikely to make headway until after the November election. Key items in limbo on the agency’s docket include 2011 proposed rules governing the creation of a compensation data collection tool and additional affirmative action obligations for federal contractors and subcontractors specifically affecting protected veterans and persons with disabilities. 

A report issued by the National Research Council of the National Academies of Sciences (NAS) expresses concern about the OFCCP’s ambitious proposal to collect pay information by gender, race, and national origin in order to potentially shed light on discriminatory pay practices. The report, which was requested by the EEOC in 2010, cites high cost estimates, a lack of vision or purpose for how the data will be utilized after it is collected, and privacy concerns related to the protection of confidential wage information.

The NAS report could strike a critical blow to the OFCCP’s attempts to create the compensation data collection tool. The NAS report could also jeopardize proposed changes to the OFCCP’s compliance evaluation “scheduling letter,” which among other things seeks increased wage information from contractors.

Prospects for immediate movement on the balance of the OFCCP’s agenda are equally dim. Proposed revisions to Section 503 of the Rehabilitation Act of 1973 have stalled due to objections to its high costs. And proposed rules affecting veterans’ employment regulations under The Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA), expected to be finalized in early 2012, are now on hold as well. 

The OFCCP will likely remain in a holding pattern until after November, when the direction of its regulatory program will be driven largely by the election results. In the meantime, the significant expansion in the scope of audits over the past few years—requests for more documentation, follow-up even when only one employee is affected, increased focus on technical violations, greater use of Conciliation Agreements to resolve technical violations, remedies applied enterprise-wide, and a continued focus on veterans and people with disabilities—will continue to occupy much of contractors’ attention.

Ballard Spahr attorneys regularly advise on OFCCP compliance and responding to OFCCP audits. If you have questions, please contact Constantinos G. Panagopoulos at 202.661.2202 or, or the member of the Labor and Employment Group with whom you work.


Copyright © 2012 by Ballard Spahr LLP.
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