- The Final LGBT Regulations: Understanding What OFCCP has, and has Not, Done
- January 23, 2015
- Law Firm: Jackson Lewis P.C. - White Plains Office
- As we previously reported, OFCCP published the Executive Order 13672 Final Regulations regarding sexual orientation and gender identity discrimination on December 9, 2014 without the public notice and comment period typically required by the Administrative Procedure Act (APA), such as with the veteran and Section 503 regulations.
Since then some confusion has arisen as to whether OFCCP has opened the Final Regulations for public comment in response to Congressional pressure. It has not.
Here’s the story. On December 3, 2014, OFCCP released the Final LGBT Regulations stating its position that the Regulations fall within an exemption to the APA’s notice and comment requirement. As set forth in an OFCCP FAQ:
"President Obama’s Executive Order was very clear about the steps the Department of Labor was required to take, and left no discretion regarding how to proceed. In such cases, principles of administrative law allow an agency to publish final rule without prior notice and comment when the agency only makes a required change to conform a regulation to the enabling authority, and does not have any discretion in doing so.
This position was also set forth in the Regulations themselves. 79 FR 72987. Ahead of the publication of the Final Regulations, the Committee on Education and the Workforce of the House of Representatives, which has oversight of OFCCP, sent a letter to Director Shiu urging OFCCP to allow public comment pursuant to the APA. The Committee has requested a response from OFCCP by this Wednesday, December 17.
During a Webinar on December 5 regarding the Final Regulations, OFCCP stated its intention to publish the Final Regulations in the Federal Register on December 9, 2014. In addition, OFCCP mentioned it would also be publishing a Notice requesting comment on potential information collection aspects of the Final Regulations but that the Notice would not affect the Final Regulations.
As represented, OFCCP published the information collection Notice in the Federal Register on December 8 and the Final Regulations on December 9. The Notice refers to the Final Regulations being published concurrently, and requests comment on only certain aspects of the Regulations which might be interpreted as information collection requirements. 79 FR 72703. The Final Regulations also refer to the concurrent publication of the Notice regarding information collection. 79 FR 72992. The information collection notice is not a Notice of comment for the final LGBT rules.
As such, the Final Regulations are not currently open for comment and are set to go into effect on April 8, 2015 as published.
Stay tuned for more as OFCCP responds to the Committee on Education and the Workforce of the House of Representatives inquiry into these Final Rules.