The OFCCP Digest - Produced by
Topic: OFCCP Audits
Last month, OFCCP announced it had sent 1,000 Courtesy Scheduling Announcement Letters (CSALs) to contractors to notify them that they would be audited by OFCCP in the near future, and as soon as March 19, 2018. As contractors who were on that CSAL list anxiously check their mail...more
Scott Pechaitis
Scott Pechaitis, Esq.
Principal, Jackson Lewis P.C.
Lisa Marsh
Lisa Marsh, Esq.
Associate, Jackson Lewis P.C.
Topic: Internet Applicant Rule
This article discusses the trend by electronic applicant tracking systems to permit recruiters greater flexibility in moving applicants, who applied under one requisition, into a different requisition, so that the applicant may be considered for the same job at a later date or for other roles...more
Alissa Horvitz
Alissa Horvitz, Esq.
Member Attorney, Roffman Horvitz, PLC
Josh Roffman
Joshua Roffman, Esq.
Managing Attorney, Roffman Horvitz, PLC
Topic: AAP
The Office of Federal Contract Compliance Programs (OFCCP) adopted the Darden1 factors in 2014, to assist federal contractors in determining whether certain types of employees should be included in a federal contractor's Affirmative Action Plan. While these factors do shed some light...more
Marilynn Schuyler
Marilynn L. Schuyler, Esq.
Counsel, Schuyler Affirmative Action Practice
Topic: OFCCP
In prior articles in this series, published on November 17, 2017 and February 14, 2018, I proposed an evaluation of OFCCP's recent regulatory and enforcement positions through the lenses of the fundamental and perennial question, "What is Law?" This review is timely because...more
Bill Doyle
Bill Doyle, Esq.
Partner, McGuireWoods LLP
Topic: Disability
My job is to find community employment for adults with disabilities. I work for an agency in the Chicagoland suburbs and when talking with others about what I do, I frequently get asked, "Why would your clients want to work? They receive disability benefits and don’t have to do...more
Sheryl Letwat
Sheryl Letwat
Consultant, Clearbrook
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: Job Posting Wording – Proposal/Bid Positions
I am interested in knowing what guidelines we should be following in posting contingent/future positions. For example, we are often asked to post multiple positions for a proposal effort which may or may not be awarded. How should that be communicated in the job description/posting, and are there any other considerations in regard to remaining compliant? We are a federal contractor and our positions are being posted to the appropriate ESDS. In the past, we have used, "in anticipation of contract award", or something similar. Is this sufficient?
I hope I'm understanding your issue. It sounds like the situation is, the company is posting a position based on a bid. If the bid is awarded, then the hire is expected to be made and if the award is not won, then there will be no hire. There are no guidelines regarding this specific situation in the laws and regulations enforced by OFCCP. There is no specific language required for contingent positions. Of course, all of the posting and advertising rules still apply.
DOL Highlights
New OFCCP Directive Requires PDNs in All Cases
The OFCCP issued a directive requiring all offices to use Predetermination Notices (PDNs) to inform federal contractors that OFCCP found preliminary individual or systemic employment discrimination. Regional discretion, which was previously allowed, is no longer permitted under Directive 2018-01. Contractors will be given 15 calendar days to refute the findings prior to an official Notice of Violation (NOV) being issued.
U.S. Court of Appeals Rules Title VII Covers Transgender Discrimination
The U.S. Court of Appeals for the Sixth Circuit determined that an employee transitioning from one gender to another is covered under Title VII of the Civil Rights Act of 1964. The Federal Court ruled that a funeral home discriminated against its employee by firing the individual when she decided to change her presentation from male to female. The decision by the three-judge panel argued the termination was unlawful as it was related to her transition to a different gender, thus agreeing that transgender status is protected under Title VII on the basis of sex. This victory, which was a reversal of a lower court’s ruling, is the first of its kind for a transgender worker.
Federal Court Says Sexual Orientation Discrimination Prohibited Under Title VII
The U.S. Court of Appeals for the Second Circuit ruled that discrimination based on sexual orientation violates Title VII of the Civil Rights Act of 1964. The court in New York overturned a 2017 ruling that did not recognize an individual's sexual orientation as being protected under Title VII when a man claimed he was fired from his job for telling a female customer he was gay. In the Second Circuit's reversal, it argued that "because sexual orientation is a function of sex and sex is a protected characteristic under Title VII, it follows that sexual orientation is also protected." This 10-3 decision means the Second and Seventh Circuits agree sexual orientation falls under Title VII, which is the position that the Equal Employment Opportunity Commission (EEOC) supports. However, the Eleventh Circuit does not agree with this assertion, meaning it is likely the U.S. Supreme Court will need to review this issue.
NLRB Brings Back Browning-Ferris Test for Joint Employment
The National Labor Relations Board (NLRB) issued an order reinstating the Browning-Ferris test as the standard for establishing joint-employer status. Under Browning-Ferris, a company is considered a joint employer if it exercises indirect control over employees.
Read more DOL Highlights throughout the month for timely updates.
Women's History Month
This March we will celebrate Women’s History Month, a commemorative month designated by Congress in 1987 as a way to honor the contributions and achievements by women in American history and in the workforce. Check out the official Women’s History Month website for details on women in history, celebrations in March, and additional exhibits and educational items to enjoy all year.
The Future for a Pay Equity Safe Harbor at OFCCP
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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.