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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 issues and international HR compliance. Her practice includes advice pertaining to harassment, discrimination, leave, whistleblower, wage and hour, trade secret, and reduction-in-force issues arising…

Lindsay Burke co-chairs the firm’s employment practice group and regularly advises U.S., international, and multinational employers on employee management issues and international HR compliance. Her practice includes advice pertaining to harassment, discrimination, leave, whistleblower, wage and hour, trade secret, and reduction-in-force issues arising under federal and state laws, and she frequently partners with white collar colleagues to conduct internal investigations of executive misconduct and workplace culture assessments in the wake of the #MeToo movement. Recently, Lindsay has provided critical advice and guidance to employers grappling with COVID-19-related employment issues.

Lindsay 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 Washington, DC office. She is a member of the Government Contracts Practice Group, advising clients across a broad range of government contracting issues. She also maintains an active pro bono practice.

Photo of Michael Wagner Michael Wagner

Mike Wagner helps government contractors navigate high-stakes enforcement matters and complex regulatory regimes.

Combining deep regulatory knowledge with extensive investigations experience, Mr. Wagner works closely with contractors across a range of industries to achieve the efficient resolution of regulatory enforcement actions and government…

Mike Wagner helps government contractors navigate high-stakes enforcement matters and complex regulatory regimes.

Combining deep regulatory knowledge with extensive investigations experience, Mr. Wagner works closely with contractors across a range of industries to achieve the efficient resolution of regulatory enforcement actions and government investigations, including False Claims Act cases. He has particular expertise representing individuals and companies in suspension and debarment proceedings, and he has successfully resolved numerous such matters at both the agency and district court level. He also routinely conducts internal investigations of potential compliance issues and advises clients on voluntary and mandatory disclosures to federal agencies.

In his contract disputes and advisory work, Mr. Wagner helps government contractors resolve complex issues arising at all stages of the public procurement process. As lead counsel, he has successfully litigated disputes at the Armed Services Board of Contract Appeals, and he regularly assists contractors in preparing and pursuing contract claims. In his counseling practice, Mr. Wagner advises clients on best practices for managing a host of compliance obligations, including domestic sourcing requirements under the Buy American Act and Trade Agreements Act, safeguarding and reporting requirements under cybersecurity regulations, and pricing obligations under the GSA Schedules program. And he routinely assists contractors in navigating issues and disputes that arise during negotiations over teaming agreements and subcontracts.

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