The OFCCP Digest - Produced by
Topic: Compensation
Over the last several decades, pay secrecy policies have persisted – and even thrived – in the American workplace. Employees who are told not to discuss their compensation with their colleagues rarely question the legality of such a prohibition and, even if they did, are fearful of violating...more
Connie Bertram
Connie Bertram, Esq.
Partner, Proskauer
Emilie Adams
Emilie Adams, Esq.
Associate, Proskauer
Topic: AAP
When we think about affirmative action in employment, the general tendency is to think about the federal affirmative action laws and regulations that are enforced by the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP). However, there are many state...more
Bill Osterndorf
Bill Osterndorf
President and Founder, HR Analytical Services
Topic: FLSA
The practice of hiring interns has become widely recognized across different organizations. Determining whether an intern is considered an "employee" under the Fair Labor Standards Act (FLSA) has been a troubling task for most organizations until now. The Department of Labor...more
Michiko Clark
Michiko Clark, M.A.
Associate HR Consultant, Berkshire Associates
Topic: OFCCP
In the three prior articles in this series, we have evaluated OFCCP's recent regulatory and enforcement positions through the lenses of the fundamental and perennial question, "What is Law?" Since our earlier articles, Secretary of Labor R. Alexander Acosta has continued to build his...more
Bill Doyle
Bill Doyle, Esq.
Partner, McGuireWoods LLP
Topic: Disability
In our increasingly fast-paced and stressful world, it seems we are called to accomplish more and more in less time. That may go for many of us in our employment situations as well. As employers and contractors continue to downsize and become leaner, many employees find themselves...more
Melanie Whetzel
Melanie Whetzel, M.A., CBIS
Lead Consultant, Cognitive/Neurological Team, Job Accomodation 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: Staffing Agency – Required Notice and Compliance
We are a federal prime contractor & subcontractor who places IT employees on federal and state contracted projects. These are our employees working on a state or federal work site. Sometimes we must reach out to a staffing company to fill specialized positions when our sourcing/postings are not producing qualified candidates. I've been told previously that being a federal contractor, any staffing company or subcontractor we use, whether for a federal or state position, must be compliant with OFCCP guidelines when recruiting, and also receive the required "our company is a federal contractor" notice.

Two questions:

1. If our state position pays our company with state funds, must our staffing/sub-contractor company follow OFCCP guidelines and also receive the required notice?
2. If so, do we need to require them to send recruiting documentation or just have it available in case of an audit?
This one is a little complicated to answer without knowing the facts in more detail. However, I hope the info below is helpful as a guide.

1. If the individual is an employee of a company that is a federal contractor or subcontractor, then the company must follow the OFCCP regulations, including ensuring that the proper clauses are a part of the subcontracts. When it is unclear due to the facts whether this language is required, it may ultimately come down to how your company feels about risk if your company and the OFCCP disagree - that is, would the company want to litigate the matter? From the facts above, it is likely that the company would want to include the language.
2. The company is responsible for the applicant flow log and hires (or candidates, if the agency sends a few potential employees from whom to choose). It’s important that the agency use ONLY the hiring criteria given by your company, and not additional criteria. It's important to request the applicant and hire data so that your company can run the required analyses, to prevent surprises in an audit. The regulations state that using a third party agency does not exempt the company from non-discrimination obligations, so it's best to ensure the company understands what’s going on with the data at the hiring agency.
DOL Highlights
Former OFCCP Acting Director Moving to Training Agency
Thomas Dowd, the acting director of the OFCCP during the 2017 presidential transition, is leaving OFCCP for a position with the DOL’s Employment and Training Administration division. Under his direction in fiscal year 2017, OFCCP collected a record $23 million in workplace discrimination settlements. Dowd was praised for his professional development work and investment in leadership, particularly while heading the OFCCP during the transition. Dowd joined OFCCP in 2011 as the deputy director under Patricia Shiu.
DOL Issues New FLSA Fact Sheet for Higher Education Institutions
The DOL’s Wage and Hour Division (WHD) has issued a new fact sheet describing how “white collar” exemptions to the Fair Labor Standards Act (FLSA) are applicable for jobs often held in higher education institutions. Fact Sheet #17S offers insight specifically into minimum wage and overtime exemptions for these higher education positions, such as teachers, coaches, research assistants, and more.
Wage and Hour Division Releases New Opinion Letters
Three new opinion letters have been issued by the DOL's Wage and Hour Division (WHD) to address the following topics: 1) work time under FLSA when employees travel (FLSA2018-18); 2) potential compensation for 15-minute breaks required by an employee’s serious health condition (FLSA1018-19); and 3) whether lump-sum payments to employees are "earnings" for garnishment consideration under the Consumer Protection Act (CCPA22018-1NA). Opinion letters represent the agency’s policy on how certain laws apply to particular circumstances.
AAAED National Conference
The 44th National AAAED Conference, "Bridging Opportunities: Keeping the Dream Alive," takes place June 6-8, 2018 in Atlanta, Georgia. This conference is designed to meet the needs of any person classified as an EEO/AA or diversity professional. You can check out the 2018 agenda to see the list of quality speakers and information in store.
Complimentary OFCCP Webinars
Complimentary OFCCP Webinar
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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.