OFCCP Releases New Guidance for Educational Institutions

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By Connie N. Bertram and Jack Blum

After devoting its first opinion letter to addressing aspects of its jurisdiction over higher education institutions, OFCCP recently provided additional guidance about the AAP obligations of educational institutions.  In addition, the agency pledged to publish a technical assistance guide to provide further assistance to government contractors in the higher education field.

First, OFCCP released a new Directive 2019-05 addressing the employment status of student employees, such as graduate research or teaching assistants.  The employment status of these types of workers has been a hotly litigated issue under Title VII, the FLSA, and other employment statutes.  In its directive, OFCCP announced that it would exercise its enforcement discretion to permit educational institutions to exclude student employees from their AAP job groups and personnel activity data submissions.  OFCCP noted that the available data for these employees is typically not robust enough to support reliable statistical analyses and distracts OFCCP and contractors from focusing on their resources and attention “on individuals whose primary relationship with the educational institution is work-related.”  This exclusion is a win for contractors as they are relieved from tracking personnel activity for employees whose employment is typically short-tenured with high year to year (or semester to semester) turnover.

OFCCP also released a new FAQ regarding the definition of “establishment” in the context of campus-like settings in which employees work in multiple, closely-situated buildings.  The FAQ addresses whether the entire campus should be combined into one AAP or whether separate AAPs should be maintained for different locations on the campus.  Unfortunately, the FAQ provides little definitive guidance and instead emphasizes that the AAP organization of a campus-type facility is a fact-specific inquiry.  Generally, contractors maintaining campus facilities must look to the level of interaction and interdependence of the employees and units in the various buildings on the campus.

With this flurry of guidance, OFCCP appears to be following through on Director Leen’s pledge to focus on compliance assistance. Polsinelli will continue to track OFCCP guidance releases.

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