Office of Federal Contract Compliance Programs (OFCCP) Acting Director Michele Hodge spoke on July 30, 2024, to a live audience at the 2024 National Industry Liaison Group (NILG) Conference in Orlando, Florida. As part of her address, Hodge outlined some of the agency’s recent achievements and provided comments about ongoing enforcement efforts.
OFCCP is the unit of the U.S. Department of Labor responsible for enforcing the special affirmative action rules and regulations that apply to covered federal contractors and subcontractors. NILG is a nonprofit organization originally formed for the purpose of improving communications between the OFCCP, the U.S. Equal Employment Opportunity Commission and covered employers across the country.
Of particular interest to employers were Hodge’s thoughts on OFCCP’s current enforcement priorities, which include:
- Adapting OFCCP’s investigative model to address changing human resources technologies, such as the use of artificial intelligence in employee recruiting, hiring selection, promotion and compensation.
- Continuing to expand compliance with OFCCP’s contractor certification portal, which she stated had a 24% increase in certified establishments in June 2024, year over year.
- Updating OFCCP’s complaint filing process, including added avenues “for third parties” (e.g., workers’ rights groups, advocacy organizations, unions) “to provide input and evidence” to OFCCP regarding alleged equal employment opportunity concerns.
Hodge also highlighted various OFCCP achievements over the last year, including:
- The rollout of a new supply and service scheduling letter and itemized listing form in 2023.
- Updates to OFCCP’s published sample affirmative action plan (AAP) for veterans.
- The issuance of guidance in the form of new FAQs on the impact and use of compensation history.
- OFCCP’s increased presence on social media, including the use of platforms such as Facebook, X and LinkedIn as a mechanism to alert OFCCP conciliation class members of the potential for monetary awards.
Hodge’s speech was also notable for what she did not address. Hodge did not discuss:
- The status of OFCCP’s efforts to push forward new AAP structural design regulations, titled “Modernizing Affirmative Action and Nondiscrimination Obligations for Federal Contractors and Subcontractors” (which appear to be tabled until after the 2024 November election cycle).
- The impact of recent U.S. Supreme Court decisions on OFCCP’s regulatory approach and overall enforcement structure, including (a) the end of Chevron deference for federal agency statutory interpretations under Loper Bright Enterprises v. Raimondo, and (b) the successful Seventh Amendment right-to-jury-trial challenge brought against the Securities and Exchange Commission’s civil penalty internal adjudication powers in SEC v. Jarkesy.
- OFCCP’s meager enforcement accomplishments fiscal-year-to-date, with only 18 financial conciliation agreements reported and posted in OFCCP’s Freedom of Information Act reading room thus far for federal FY 2024 (which ends Sept. 30, 2024).
For questions about Acting Director Hodge’s NILG comments or federal affirmative action compliance, please contact the authors, your McGuireWoods contact or a member of the firm’s affirmative action, labor and employment, or federal contracting teams.