On April 30, 2024, the Office of Federal Contract Compliance Programs (OFCCP) announced the release of a new artificial intelligence (AI) landing page. Following the link, the OFCCP provides 10 FAQs following by “promising practices” on the development and use of AI by federal contractors. While the promising practices aren’t expressly required, the agency describes them as “actions contractors may consider to help avoid potential harm to workers and promote trustworthy development and use of AI”.
In addition, the OFCCP issued an FAQ below as part of the Biden administration’s push to regulate AI. The FAQ reminds federal contractors that their use of AI will be reviewed during periodic audits.
What about “new technology” screening devices like games, challenges, and video submissions that use artificial intelligence (AI) algorithms to assess qualifications?
Irrespective of the level of technical sophistication involved, OFCCP analyzes all selection devices for adverse impact. If OFCCP discovers that a contractor’s use of an AI-based selection procedure is having an adverse impact at a contractor’s establishment, the contractor will be required to validate the selection procedure using an appropriate validation strategy as described in the answer to question 3 above.
The OFCCP announced the addition of 16 large infrastructure projects, funded through the Biden-Harris administration’s $2 trillion Investing in America agenda, to the Mega Construction Project Program.
The agency launched the “Megaproject” Program in March 2023. It aims to foster equal opportunity in the construction trades’ workforce and expand access to the millions of good jobs being created by large federal or federally assisted construction projects valued at $35 million or more and that last more than one year. The agency partners with Departments of Commerce, Energy, Interior, and Transportation as well as the Corps of Engineers on these projects.
The OFCCP has entered into a conciliation agreement with Caterpillar Inc. to resolve alleged systemic hiring discrimination against 60 black applicants at one of the heavy equipment manufacturer’s production facilities in Decatur, Illinois.
During a routine compliance review, the agency found that Caterpillar discriminated against 60 black applicants who applied for fabrication specialist/welder positions at its Decatur facility from March 30, 2018, to March 30, 2020. To resolve the allegations, Caterpillar Inc. will pay $800,000 in back wages and interest to affected job applicants and offer jobs to 34 eligible class members. The company also agreed to ensure its hiring policies and procedures are free from discrimination and provide training to all managers, supervisors, and other company officials who oversee hiring decisions.
In the first of three cases in the courts of appeals challenging President Joe Biden’s federal contractor minimum wage, the U.S. 10th Circuit Court of Appeals affirmed the lower court’s 2022 decision rejecting a request for an injunction against the minimum wage filed by two recreational touring industry companies. The court declined to apply the major questions doctrine, which would have narrowed President Biden’s authority to issue such Executive Orders. The court of appeals had previously paused enforcement of the $15 minimum wage for federal contractors against recreational businesses that have permits to operate on federal property.
However, the 5th and 9th Circuits have challenges to President Biden’s $15 minimum wage before them as well. With the likelihood of a circuit split, it’s now probable that the final decision on the power of the president under the Procurement Act will be resolved by the U.S. Supreme Court.
H. Juanita Beecher is an attorney with FortneyScott in Washington, D.C. You can reach her at nbeecher@fortneyscott.com.
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