By Nancy S. Anton, Anne M. Radolinski and Penny S. Oleson
Question
I am a covered federal contractor/subcontractor subject to the various federal affirmative action laws, including Executive Order 11246, Section 503 of the Rehabilitation Act and Section 4212 of the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA). I heard there is an exemption from all OFCCP obligations, and my affirmative action plan year is coming to end. Do I need to update my affirmative action plans this year, or do I qualify for this exemption?
Answer
On March 17, 2020, the Office of Federal Contract Compliance Programs (OFCCP) issued a National Interest Exemption (NIE) Memorandum granting a limited exemption and waiver from many affirmative action obligations for federal contractors and subcontractors entering into certain supply & service and construction contracts that provide COVID-19 relief.
The current memorandum covers contracts that provide COVID-19 relief entered into during the period March 17, 2020 to June 17, 2020, and exempts qualifying contractors and subcontractors from a number of obligations under Executive Order 11246, Section 503 and VEVRAA including but not limited to the obligation to prepare and maintain written affirmative action plans, post EEO policy statements, EEO/AA taglines, as well as other posting requirements, and list job openings with state job banks. The OFCCP indicates that the waiver and exemption may be extended beyond June 17, 2020, if “special circumstances in the national interest so require.” The OFCCP has issued a series of Q&As related to the NIE exemption and waiver.
Contractors and subcontractors subject to the NIE exemption and waiver are still covered by the nondiscrimination and non-retaliation obligations, and their obligations under other federal, state and local human rights laws. The OFCCP will still accept and investigate complaints of discrimination and/or retaliation.
The NIE exemption is limited to contracts in the specific time period above that provide COVID-19 relief. Affirmative action obligations triggered by all other federal contracts and subcontracts remain, including but not limited to the obligation to prepare and maintain written affirmative action plans, post EEO policy statements, EEO/AA taglines, as well as other posting requirements, and list job openings with state job banks, and to cooperate and respond to OFCCP compliance audits. The OFCCP continues to conduct compliance audits and has put into place protocols to continue operations.
A contractor or subcontractor covered by the NIE exemption does not need to file an EEO-1 based on the covered contract or subcontract that provides COVID-19 relief unless the contractor or subcontractor is a private employer with 100 or more employees.
For employers that are subject to the EEO-1 filing requirements, the deadline for filing has not yet been set and the portal is not currently open. The filing deadline, once set, will be posted on the EEOC website. Contractors and subcontractors that have filed an EEO-1 in the past should also receive notice of the filing date.
Fredrikson & Byron Employment & Labor attorneys regularly advise and assist clients regarding affirmative action matters, including developing and updating affirmative action plans and programs, advising on affirmative action strategies, and responding to discrimination and retaliation complaints, and federal and state compliance audits.
If you need assistance with the development or updating of an affirmative action plan, or in the event you receive notice of a complaint filed with the OFCCP or a notice of audit from the OFCCP or a state human rights department or agency, please reach out to a member of the Fredrikson & Byron Employment and Labor team.
