The U.S. Court of Appeals for the Fourth Circuit has temporarily stayed a nationwide injunction, allowing the federal government to enforce provisions of Executive Orders 14173 and 14151, which restrict certain DEI activities, while the appeal proceeds. Businesses with federal contracts or grants should review their DEI policies to ensure compliance with federal anti-discrimination laws
On June 29, 2023, in a 6-3 decision authored by Chief Justice Roberts, Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, the U.S. Supreme Court held that college and university race-conscious admission decisions at Harvard University and the University of North Carolina violate the Equal Protection Clause of the 14
Husch Blackwell attorney Tracey O’Brien has posted about the new guidelines OFCCP released on veteran hiring benchmarks, reducing the national annual benchmark to 5.4%.
Effective March 31, 2023, OFCCP rescinded the Trump administration’s Final Rule, Implementing Legal Requirements Regarding the Equal Opportunity Clause’s Religious Exemption (Final Rule). The Final Rule was issued in December 2020, during the waning days of the Trump administration. While the text of OFCCP regulation, 41 C.F. R. 60-1.5(a)(5) (OFCCP religious exemption), was not changed by the Final Rule, the Final Rule did add 1) a new paragraph with definitions to terms used in the religious exemption under Executive Order 11246 (E.O. 11246), and 2) a new rule of construction applicable to the religious exemption. The recission of the Final Rule follows OFCCP’s March 1, 2023 recission of Directive 2018-03, which contained the legal interpretations and policies reflected in the Final Rule.
The Office of Federal Contract Compliance Programs (OFCCP) has made several announcements, including Directives, Notices, and Proposals in their quest to embark on initiatives that significantly impact federal contractors’ affirmative action obligations.
The Department of Energy through the Office of Science has announced that beginning in FY 2023, all DOE funding solicitations, including the Office of Science Funding Opportunity Announcements (FOAs) and DOE National Lab Announcements, will require applicants to submit as an appendix to proposal narratives, a “Promoting Inclusive and Equitable Research (PIER) Plan.” The purpose of the PIER Plan is to “describe the activities and strategies applicants will incorporate to promote diversity, equity, inclusion and accessibility in their research projects.” According to the Office of Science’s announcement, the Office of Science will evaluate PIER Plans as “part of the merit review process,” and they “will be used to inform funding decisions.” Applications without PIER Plans will be considered “incomplete” and “will not be evaluated.”
Key Point
As we wrote back in November 2021, the Biden Administration issued Executive Order 14055 reinstating most of the concepts from the Obama Administration era nondisplacement Executive Order 13495. Two months after Biden’s imposed deadline of May 2022, the U.S. Department of Labor finally published proposed regulations on July 15, 2022.
Generally speaking, EO 14055 and the proposed Nondisplacement regulations require successor contractors to make offers of employment to all predecessor contractor Service Contract Act covered employees who worked on the predecessor contract. Predecessor contractors are required to prepare and submit a list of their Service Contract Act covered employees to the contracting officer at least 30 days prior to contract termination. The contracting officer then provides a copy of that list to the successor contractor who then is required to make bona fide job offers to the predecessor’s service employees who worked on the prior contract. The rollout of these new regulations is of the utmost importance to any federal contractor or subcontractor with employees subject to the Service Contract Act.
When Congress enacted the National Defense Authorization Act for Fiscal Year 2020 in December 2019, Congress included the Fair Chance to Compete for Jobs Act of 2019 (the Act). The Act, in relevant part, restricts federal contractors from requesting criminal history information from certain job applicants until after the applicant has received a conditional offer
On December 7, 2021, the U.S. District for the Southern District of Georgia, in Georgia v. Biden, No. 1:21-cv-163, granted a preliminary injunction that temporarily stayed the Biden administration’s vaccine mandate for federal contractors and subcontractors “in any state or territory of the United States of America.” The case was initially brought by Georgia, Alabama, Idaho, Kansas, South Carolina, Utah, and West Virginia. The Associated Builders and Contractors (ABC), a national trade organization, intervened on the side of the plaintiffs. The seven states and ABC requested a preliminary injunction staying Executive Order (EO) 14042 and associated FAR clauses and Guidance, which require federal contractors and subcontractors to have their employees provide proof of vaccination in order to work on or in connection with federal contracts and also impose mask and social distancing requirements. The court granted the preliminary injunction and stayed the federal contractor vaccine mandate nationwide.