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Under the new RFI, contractors may submit comments and other information to OFCCP by December 1, 2020, but any submission of information is strictly voluntary.  As discussed below, prior to making any submission, contractors should consider carefully the nuances of the EO and RFI and the potential implications of making a voluntary submission.

Scope of the RFI

  • The RFI requests information or materials concerning any workplace trainings of federal contractors that involve “race or sex stereotyping or scapegoating,” as defined in the EO.  Subsequent guidance from OMB indicates relevant trainings may include key terms such as “critical race theory,” “white privilege,” “intersectionality,” “systemic racism,” “positionality,” “racial humility,” and “unconscious bias.”
  • The RFI also requests “copies of any training, workshop, or similar programming having to do with diversity and inclusion as well as information about the duration, frequency, and expense of such activities.”
  • The RFI further requests responses that indicate whether there have been complaints concerning trainings, disciplinary actions taken in response to complaints made about the trainings, responsible parties for developing trainings, whether the trainings are mandatory or optional, and the portion of a company’s annual mandatory or optional trainings that relate to diversity.
  • The RFI incorporates the EO’s list of “divisive concepts” that qualify as “unlawful race or sex stereotyping or scapegoating,” including that “an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously” and that “any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex.”

Information Submission and Potential Public Disclosure

Although OFCCP has pledged to “keep information and materials submitted under this process confidential under Exemption 4 of the Freedom of Information Act to the maximum extent permitted by law,” the RFI also makes clear that any submitted materials may become a matter of public record, so submissions should be carefully reviewed before they are provided to OFCCP.  The RFI further cautions that submissions should not provide information or materials “prohibited by law from disclosure under a valid confidentiality agreement, information or materials that are trade secrets, information or materials that are copyrighted, or information or materials that contain individual medical information or personally identifiable information.”  Because response to the RFI is voluntary, it is unlikely that a submission would fall within an exception to an otherwise applicable confidentiality or non-disclosure requirement.

Materials may be submitted at the Federal eRulemaking portal, or by mail or phone. Full details for submission are included in the RFI.

Enforcement Actions and Safe Harbor

Under the EO, the Department of Labor has authority to “take appropriate enforcement action and provide remedial relief, as appropriate.”  The OFCCP will provide compliance assistance to federal contractors and subcontractors who voluntarily submit information. Consistent with law, the OFCCP will exercise its enforcement discretion and decline to take enforcement actions against contractors that voluntarily submit information, so long as the contractor “promptly comes into compliance” with the EO if so directed by OFCCP.  Enforcement action may be taken, however, if OFCCP receives “unlawful” training material from another source, or if contractors who voluntarily provided information do not promptly come into compliance after receiving direction to do so from OFCCP.

Effective Date

While the EO’s requirements are scheduled to be incorporated into new contracts beginning November 21, 2020, contractors who voluntarily choose to provide information in response to the RFI may do so now.  Of course, whether to provide information requires careful consideration of the potential benefits and drawbacks of submitting to OFCCP review, a decision which should be made in consultation with qualified counsel.  Given the potential legal, political, and practical hurdles to implementing and enforcing the EO, it remains to be seen whether the RFI’s safe harbor provision will be a sufficient incentive for contractors to come forward voluntarily — or whether a “safe harbor” will even be necessary to mitigate the impact of the EO.  What is clear, however, is that there will be further action on this issue, and we will continue to watch for new developments throughout 2020.

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Photo of Lindsay Burke Lindsay Burke

Lindsay Burke co-chairs the firm’s Employment Practice Group and regularly advises U.S., international, and multinational employers on employee management and culture issues and international HR compliance. She is a key member of the firm’s Institutional Culture and Social Responsibility practice, working together with…

Lindsay Burke co-chairs the firm’s Employment Practice Group and regularly advises U.S., international, and multinational employers on employee management and culture issues and international HR compliance. She is a key member of the firm’s Institutional Culture and Social Responsibility practice, working together with white collar colleagues to conduct culture assessments, internal investigations of executive misconduct, and civil rights and racial equity audits and assessments. Lindsay has been at the forefront of the changing workplace issues impacting employers in the U.S. in the last decade, including #MeToo, Covid-19, and the renewed focus on diversity, equity, and inclusion. She frequently advises employers in relation to their processes and procedures for investigating complaints of discrimination, harassment, and retaliation and trains executive teams and board members on culture risk and the lawful implementation of DEI programs.

Lindsay also guides employers through the process of hiring and terminating employees and managing their performance, including the drafting and review of employment agreements, restrictive covenant agreements, separation agreements, performance plans, and key employee policies and handbooks. She provides practical advice against the backdrop of the web of state and federal employment laws, such as Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Equal Pay Act, the Family and Medical Leave Act, the Fair Labor Standards Act, and the False Claims Act, with the objective of minimizing the risk of employee litigation. When litigation looms, Lindsay relies on her experience as an employment litigator to offer employers strategic advice and assistance in responding to demand letters and agency charges.

Lindsay works frequently with the firm’s privacy, employee benefits and executive compensation, corporate, government contracts, and cybersecurity practice groups to ensure that all potential employment issues are addressed in matters handled by these groups. She also regularly provides U.S. employment law training, support, and assistance to start-ups, non-profits, and foreign parent companies opening affiliates in the U.S.

Photo of Jennifer Plitsch Jennifer Plitsch

Jennifer Plitsch leads the firm’s Government Contracts Practice Group, where she works with clients on a broad range of issues arising from both defense and civilian contracts including contract proposal, performance, and compliance questions as well as litigation, transactional, and legislative issues.

She…

Jennifer Plitsch leads the firm’s Government Contracts Practice Group, where she works with clients on a broad range of issues arising from both defense and civilian contracts including contract proposal, performance, and compliance questions as well as litigation, transactional, and legislative issues.

She has particular expertise in advising clients on intellectual property and data rights issues under the Federal Acquisition Regulations (FAR) and obligations imposed by the Bayh-Dole Act, including march-in and substantial domestic manufacturing. Jen also has significant experience in negotiation and compliance under non-traditional government agreements including Other Transaction Authority agreements (OTAs), Cooperative Research and Development Agreements (CRADAs), Cooperative Agreements, Grants, and Small Business Innovation Research agreements.

For over 20 years, Jen’s practice has focused on advising clients in the pharmaceutical, biologics and medical device industry on all aspects of both commercial and non-commercial agreements with various government agencies including:

  • the Department of Veterans Affairs (VA);
  • the Department of Health and Human Services (HHS), including the Biomedical Advanced Research and Development Authority (BARDA), the National Institutes of Health (NIH), and the Centers for Disease Control (CDC);
  • the Department of Defense (DoD), including the Defense Threat Reduction Agency (DTRA), the Defense Advanced Research Projects Agency (DARPA), and the Joint Program Executive Office for Chemical Biological Defense (JPEO-CBRN); and
  • the U.S. Agency for International Development (USAID).

She regularly advises on the development, production, and supply to the government of vaccines and other medical countermeasures addressing threats such as COVID-19, Ebola, Zika, MERS-CoV, Smallpox, seasonal and pandemic influenza, tropical diseases, botulinum toxin, nerve agents, and radiation events. In addition, for commercial drugs, biologics, and medical devices, Jen advises on Federal Supply Schedule contracts, including the complex pricing requirements imposed on products under the Veterans Health Care Act, as well as on the obligations imposed by participation in the 340B Drug Pricing program.

Jen also has significant experience in domestic sourcing compliance under the Buy American Act (BAA) and the Trade Agreements Act (TAA), including regulatory analysis and comments, certifications, investigations, and disclosures (including under the Acetris decision and Biden Administration Executive Orders). She also advises on prevailing wage requirements, including those imposed through the Davis-Bacon Act and the Service Contract Labor Standards.

Photo of Sarah Schuler Sarah Schuler

Sarah Schuler is an associate in the firm’s Government Contracts Practice Group, advising clients across a broad range of government contracting compliance issues. Her areas of expertise include advising on intellectual property and data rights issues under the Federal Acquisition Regulation, including obligations…

Sarah Schuler is an associate in the firm’s Government Contracts Practice Group, advising clients across a broad range of government contracting compliance issues. Her areas of expertise include advising on intellectual property and data rights issues under the Federal Acquisition Regulation, including obligations imposed by the Bayh-Dole Act; application of the Freedom of Information Act to government contracts and related records; domestic sourcing requirements imposed under the Buy American Act and Trade Agreements Act; pricing and other compliance related issues arising under Federal Supply Schedule contracts; small business affiliation and certification analyses; the scope of flow-down requirements for subcontractors; and federal grant compliance under the Uniform Guidance and agency supplements. Sarah also counsels clients to navigate time-sensitive inquiries arising from contract compliance-related issues.

Sarah also maintains an active pro bono practice, providing counsel to U.S. service members with respect to the correction of military records and discharge upgrade requests.

Photo of Michael Wagner Michael Wagner

Mike Wagner represents companies and individuals in complex compliance and enforcement matters arising in the public procurement context. Combining deep regulatory expertise and extensive investigations experience, Mike helps government contractors navigate detailed procurement rules and achieve the efficient resolution of government investigations and…

Mike Wagner represents companies and individuals in complex compliance and enforcement matters arising in the public procurement context. Combining deep regulatory expertise and extensive investigations experience, Mike helps government contractors navigate detailed procurement rules and achieve the efficient resolution of government investigations and enforcement actions.

Mike regularly represents contractors in federal and state compliance and enforcement matters relating to a range of procurement laws and regulations. He has particular experience handling investigations and litigation brought under the civil False Claims Act, and he routinely counsels government contractors on mandatory and voluntary disclosure considerations under the FAR, DFARS, and related regulatory regimes. He also represents contractors in high-stakes suspension and debarment matters at the federal and state levels, and he has served as Co-Chair of the ABA Suspension & Debarment Committee and is principal editor of the American Bar Association’s Practitioner’s Guide to Suspension & Debarment (4th ed.) (2018).

Mike also has extensive experience representing companies pursuing and negotiating grants, cooperative agreements, and Other Transaction Authority agreements (OTAs). In this regard, he has particular familiarity with the semiconductor and clean energy industries, and he has devoted substantial time in recent years to advising clients on strategic considerations for pursuing opportunities under the CHIPS Act, Inflation Reduction Act, and Bipartisan Infrastructure Law.

In his counseling practice, Mike regularly advises government contractors and suppliers on best practices for managing the rapidly-evolving array of cybersecurity and supply chain security rules and requirements. In particular, he helps companies assess and navigate domestic preference and country-of-origin requirements under the Buy American Act (BAA), Trade Agreements Act (TAA), Berry Amendment, and DOD Specialty Metals regulation. He also assists clients in managing product and information security considerations related to overseas manufacture and development of Information and Communication Technologies & Services (ICTS).

Mike serves on Covington’s Hiring Committee and is Co-Chair of the firm’s Summer Associate Program. He is a frequent writer and speaker on issues relating to procurement fraud and contractor responsibility, and he has served as an adjunct professor at the George Washington University Law School.