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Immediate Action is Required to Comply with Executive Order 14398 "Addressing DEI Discrimination by Federal Contractors"

Fri, 24 Apr 2026 23:31:17 GMT

Immediate Action is Required to Comply with Executive Order 14398 "Addressing DEI Discrimination by Federal Contractors"

April 24th and July 24th are Key Dates

The Administration Plans a Wave of Investigations to Verify Compliance

Note: If your organization is not a federal contractor, or subcontractor, feel free to stop here. For the rest of us, please keep reading.

First, the ‘Bottom Line’ – effective today, federal agencies must include in new contracts detailed language requiring contractors to certify they “will not engage in any racially discriminatory DEI activities” and that contractors agree to submit to federal agencies detailed data, documents, and responses to agency inquiries, as part of a planned wave of government compliance investigations.

There’s more, much more, let’s dig into the details.

Remember Executive Order 14173?

Many may recall that President Trump’s January 2025 Executive Order 14173 (EO) “Ending Illegal Discrimination and Restoring Merit Based Opportunity” introduced, though didn’t define, the concept of “illegal DEI”. Based on that EO, federal agencies would be required to include language in all federal contracts requiring federal contractors –

to agree that its compliance in all respects with all applicable Federal anti- discrimination laws is material to the government's payment decisions for purposes of [the False Claims Act]…

Federal contracts would also include a term requiring every federal contractor –

to certify that it does not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws.

Every agency was also required to identify federal contractors potentially violating the EO (engaging in “illegal DEI”), as well as identify potential litigation against such contractors. However, the EO contained no terms to implement its requirements against federal contractors, beyond potential investigations by the Department of Justice.

Also, it’s important to note that the False Claims Act allows for triple (or more) monetary damages against a federal contractor or subcontractor that “acts in deliberate ignorance of the truth or falsity of the information,” statements or certifications made to the government.

New Executive Order 14398 Implements Anti-DEI Requirements, Starting April 24th

The recent EO 14398 clarifies that Federal agencies must not do business with contractors or subcontractors that engage in any ‘‘racially discriminatory DEI activities,” defined as –

disparate treatment based on race or ethnicity in the recruitment, employment (e.g., hiring, promotions), contracting (e.g. vendor agreements), program participation, or allocation or deployment of an entity’s resources.

The new EO also sets forth the following –

New FAR Clause Implements this, Now: A new Federal Acquisition Regulation (FAR) clause – FAR 52.222–90 – will prohibit federal contractors from engaging in any racially discriminatory DEI activities, among other dictates, described below.

April 24 ^th – New Contracts : Federal agencies must begin incorporating the new clause in solicitations and contracts over the “micro-purchase threshold” (currently $15,000) beginning today – April 24, 2026.

July 24 – Existing Contracts: Agencies must bilaterally modify existing contracts (valued at $15,000 or more) to include FAR 52.222-90 by July 24, 2026. If a contractor refuses to sign, the contracting agency is encouraged to terminate the existing contract. Contracts due to expire by December 31, 2026, may be modified at the agency’s discretion.

Obligations & Consequences

The new FAR regulation requires contractors to do the following –

Must Include Clause in Subcontracts: Contractors must flow down the clause to subcontractors at every tier above the micro-purchase threshold.

Required to Furnish Upon Request All Information & Reports: Contractors must provide access to “books, records, and accounts necessary to determine the contractor’s compliance with the clause” in upcoming planned compliance investigations.

Obligated to Report Misconduct of Subcontractors: Contractors must report any subcontractors “known or reasonably knowable conduct” that violates the clause, as well as take any appropriate remedial actions directed by the agency.

Must Report Subcontractor Lawsuits: If a subcontractor sues, and puts into issue the validity of the clause, that fact must be reported to the agency.

Consequences of Non-Compliance: Violations of the clause will allow an agency to cancel, terminate, or suspend a contract, as well as declare the contractor “debarred,” i.e., ineligible for future contracts.

False Claims Act Investigations & Litigation Create Significant Monetary Exposure

EO 14398 also provides that the U.S. Department of Justice (DOJ), in consultation with contracting agencies will, “consider whether to bring actions under the False Claims Act” against contractors or subcontractors that engage in racially discriminatory DEI activities.

By way of recent example, DOJ investigated IBM for alleged illegal DEI programs and the Company settled two weeks ago for $17 million.

As part of DOJ’s Civil Rights Fraud Initiative, several contractors, in addition to IBM, have already been identified for False Claim Act investigations and potential litigation. With the new executive order, FAR 52.222-90, and the planned wave of compliance investigations, we expect many more federal contractors and subcontractors will be subject to investigations and potential False Claims Act litigation.

In a justification document seeking approval to collect books, records and information from federal contractors suspected of engaging in racially discriminatory DEI activities, the Administration estimates it will annually conduct investigations seeking data, information and records from thousands of contractors and subcontractors.

What To Do Now

In one respect, EO 14398 provides some clarity: it prohibits (only) “disparate treatment” (as opposed to vague “illegal DEI”) based on race. In other words, access to and selection for employment opportunities must not be influenced by race.

However, as the recent $17 million IBM-DOJ settlement – which alleged DEI discrimination on multiple bases including race, sex, national origin – makes clear, the Administration will go wherever the facts and the alleged discrimination take them.

So, what steps should employer take now?

DEI Assessment: If you have not already, review all aspects of any programs and efforts that could be considered “DEI” – both current and those dating back six years, the typical statute of limitations for False Claims Act claims. Are there any aspects of those programs that could be considered “disparate treatment” discrimination? Immediately change any efforts that could be considered disparate treatment.

Task Force: Assemble a task force including legal, human resources, contracts/procurement, and compliance to coordinate and address the following:

Identify current and prospective federal contracts and subcontracts that are likely to be subject to the new FAR clause;

Prepare to flow down the new FAR clause to subcontractors as early as April 24 ^th but no later than July 24 ^th ;

Prepare for compliance investigations by contracting officers requesting data, information, records, and responses to inquiries. Conducting a “mock” investigation, under legal privilege is advisable to assess vulnerabilities.

Silberman Law will provide updates regarding EO14398, implementation of the new FAR clause, anticipated compliance investigations, and related developments, as they become available.

If you have questions in the meantime, please contact Silberman Law attorney with whom you work or simply respond to this Federal Contractor Alert.

President Trump’s New Anti-DEI Executive Order Creates New Contract Requirements, and Significant New Risks, for Federal Contractors & Sub-contractors

Mon, 30 Mar 2026 19:42:27 GMT

President Trump's New Anti-DEI Executive Order Creates New Contract Requirements, and

Significant New Risks, for

Federal Contractors & Sub-Contractors

On March 26, 2026, President Trump issued a new Executive Order “Addressing DEI Discrimination by Federal Contractors” (“EO”) along with an explanatory Fact Sheet . The new EO states that –

“DEI activities are not only unethical and often illegal, but also cause inefficiencies, waste, and abuse within entities that engage in such practices.”

The EO further states it is intended to ensure “merit-based and efficient contracting and employment.”

The “Bottom Line”

The EO creates new mandatory contract language that, if violated, can lead to existing contract termination, future contract debarment, and significant False Claims Act (“FCA”) liability. It also requires prime contractors to report to federal contracting agencies any subcontractors whose actions may violate the new contract language.

Interestingly, the EO and new contract language focus solely on “racially discriminatory DEI activities” and does not address or apply to DEI efforts or programs related to sex/gender, or other protected categories.

The EO directs Federal agencies to include the relevant contract language in federal contracts and subcontracts within 30 days, by April 25, 2026.

What DEI Efforts, Programs & Activities Are Covered?

The EO defines “racially discriminatory DEI activities” as –

disparate treatment based on race or ethnicity in the recruitment, employment (e.g., hiring, promotions), contracting (e.g., vendor agreements), program participation, or allocation or deployment of an entity’s resources.

The EO further broadens the employer programs addressed to include –

membership or participation in, or access or admission to: training, mentoring, or leadership development programs; educational opportunities; clubs; associations; or similar opportunities that are sponsored or established by the contractor or subcontractor.

The New Mandatory Contract Clause

By April 25, 2026, agencies must include the specific language in prime contracts as well as first tier, and also lower-tier, subcontracts. The EO states that employer compliance with these requirements must be “genuine and verifiable.”

Signing employers agree to six binding obligations –

The contractor will not engage in any “racially discriminatory DEI activities,” as defined in Section 2 of the Executive Order of March 26, 2026 (Addressing DEI Discrimination by Federal Contractors);
The contractor will furnish to contracting agencies all information and reports, including providing access to books, records, and accounts, for purposes of ascertaining compliance;
In the event of the contractor’s or a sub-contractor’s noncompliance with this clause, the government contract may be canceled, terminated, or suspended in whole or in part, and the contractor or sub-contractor may be declared ineligible for further Government contracts;
The contractor will report any subcontractor’s known or reasonably knowable conduct that may violate this clause to the contracting department or agency and take any appropriate remedial actions directed by the contracting department or agency;
The contractor will inform the contracting department or agency if a sub-contractor sues the contractor and the suit puts at issue, in any way, the validity of this clause; and,
The contractor recognizes that compliance with the requirements of this clause are material to the Government’s payment decisions for purposes of section 3729(b)(4) of title 31, United States Code (False Claims Act).

What Should Employers Do Now?

Employers should take steps quickly to ensure compliance, including –

Under Privilege, Audit Your DEI & EEO Programs – Conduct a privileged review of your current programs, policies, and practices and vendor agreements to ensure they comply with the new EO and contract language.
Update Your Vendor-Subcontractor Agreements – After March 26th, identify relevant subcontracts that need to be updated to include new language, reporting obligations, or other processes to ensure compliance.
Prepare for Prime Contract Changes – Agencies have 30 days to incorporate the new clause, so your contracts and legal teams should be ready to review and respond when negotiating new and modified federal contracts.
Pay Attention for Forthcoming Guidance – The Office of Management & Budget has been directed to issue further guidance and identify industry “sectors” at particular risk for violations. If your industry is identified, you should be prepared for additional scrutiny and develop an action plan.

We will update this Employer Alert as more information becomes available. If you have any questions, please contact the Silberman Law legal professional with whom you work or simply reply to this Alert .

March 18, 2026 Reporting Deadline Postponed, Pending Outcome of Litigation

Thu, 19 Mar 2026 17:41:00 GMT

Expanded IPEDS Reporting for Colleges & Universities PAUSED

March 18, 2026 Reporting Deadline Postponed, Pending Outcome of Litigation

First, the good news – if you are not employed at a college or university, you need not read further. For those in education, please read on.

A federal district court temporarily blocked the collection of expanded IPEDS data on applicants for admission.

As we previously shared , the National Center for Education Statistics (NCES) made major changes to Integrated Postsecondary Education Data System (IPEDS) annual reporting to significantly expand reporting obligations to include more detailed, disaggregated data on applicants for admission, admitted students, and enrollees through a new reporting tool, the Admissions and Consumer Transparency Supplement (ACTS).

The ACTS was approved and required as part of the IPEDS 2025-2026 data collection cycle with the first submission due by March 18, 2026.

On March 13, 2026, Judge F. Dennis Saylor IV, a federal district court judge in Boston, issued a temporary restraining order halting enforcement of the new reporting requirement while litigation challenging the requirement proceeds. The case, Commonwealth of Massachusetts, et. al. v. U.S. Department of Education, was filed by a coalition of states that contend the U.S. Department of Education exceeded its authority and failed to follow required administrative procedures when imposing the expanded data collection requirements.

Highlights

A federal court hit pause on the requirement to submit the ACTS report by March 18, 2026.
The data collection may eventually move forward, depending on the outcome of the litigation.

* * * *

Silberman Law will monitor the litigation and provide updates on revised deadlines or further guidance from the U.S. Department of Education.

If you have any questions or want to discuss, simply reply to this email or contact the Silberman Law legal professional with whom you work.

Court of Appeals Rules EEO-1 Reports Subject to FOIA Requests

Thu, 12 Feb 2026 19:08:02 GMT

Based on Federal 9th Circuit Court Decision, OFCCP to Disclose Five Years of Government Contractors' EEO-1 Reports

OFCCP Announced It Will Release the Reports to

The Center for Investigative Reporting on

February 25, 2026

Background

Over the past several years, OFCCP’s parent agency – the U.S. Department of Labor (DOL) –represented by the U.S. Department of Justice (DOJ) – has battled in federal court with The Center for Investigative Reporting (CIR) over CIR’s Freedom of Information Act (FOIA) request to OFCCP for all federal contactor EEO-1 Reports for the years 2016 through 2020.

In late 2023, a California District Court ruled that these EEO-1 Reports are not protected from FOIA disclosure. DOL appealed that decision to the Ninth Circuit Court of Appeals, which upheld the District Court’s decision in July, 2025.

The Ninth Circuit concluded that EEO-1 Reports are not confidential commercial information exempt from FOIA disclosure and remanded the case to the District Court for resolution. See our alert on this here.

The Latest Development

DOL/DOJ elected to not appeal the Ninth Circuit’s decision and as a result, and at the District Court’s direction, OFCCP has announced it will disclose the five years of government contractorEEO-1 Reports to CIR on February 25, 2026.

What Happens Next?

CIR will receive the EEO-1 Reports and use them as it wants. There is no restriction from the court regarding how CIR uses the EEO-1s or shares them publicly or with other entities. Employers should anticipate CIR will publish the EEO-1s online or otherwise make them available.

What Can Employers Do?

There is no further legal avenue for employers to appeal the Ninth Circuit’s decision or object to disclosure of the 2016-2020 EEO-1 Reports.

Employers may want to analyze the five years of EEO demographic data in the EEO-1s to determine what trends CIR or others may find. Employers that conduct such analyses can develop a communications strategy, to deploy either internally and externally, or both, to respond to possible adverse EEO trends claimed by CIR or other third-parties that analyze the EEO-1 data.

If your organization would like assistance to analyze your EEO-1 data to identify what CIR or others may find, or if you have questions regarding this development, please contact the Silberman Law legal professional with whom you work or simply reply to this Employer Alert.

California Has Opened Its Pay Data Reporting Portal

Thu, 05 Feb 2026 19:39:46 GMT

California Has Opened Its Pay Data Reporting Portal

Reports Are Due May 13, 2026

This is an update to our previous alert on this year’s California Pay Data Reporting .

The California Pay Data Reporting Portal is now open and employers have until Wednesday May13th, 2026 to submit their Payroll Employee and Labor Contractor Reports to the California Civil Rights Department (CRD).

To coincide with the opening of the Reporting Portal, the CRD also released the finalized Report Templates , Frequently Asked Questions , and Handbook to assist employers’ with their California Pay Data Reports.

California has made certain changes to the reporting requirements this year, which we outline below.

Who Must File?

California requires employers with 100 or more employees, nationwide, and with at least one employee in California, to file a Payroll Employee Report. This includes employees who:

Physically work at a location in California;
Are remote/home-based employees who are physically located in California; or
Reside outside of California but report into a California location.

In addition, employers who were provided, nationwide, with 100 or more workers by an employment agency or other third party (Labor Contractor) in 2025, and at least one of those workers were physically located in California, or reported into a California location, must also file a Labor Contractor Employee Report.

Expanded Reporting Requirements for 2026

California has confirmed the changes for this year for both Payroll and Labor Contractor Employee Reporting –

Payroll and Labor Contractor Employee Report templates and pay bands have been updated for 2026.
Employers must use the updated templates. The Reporting Portal will reject submissions using prior year versions of the templates.
Whether employees are exempt or non-exempt.
Whether employees are full-time or part-time.
Total number of weeks an employee worked in 2025.
Total hours worked in 2025 remains a reporting requirement as well as weeks worked.

What is Reported?

Both Payroll Employee and Labor Contractor Employee Reports have the same reporting requirements:

A single pay period is selected between October 1 and December 31, 2025 to determine which employees are to be included in the report.
The data required to be reported for employees and labor contractor employees includes –
Establishment
Pay Band
EEO-1 Job Category
Race/Ethnicity and Sex
Mean and Median Hourly Wage of Similarly Grouped Employees**
Remote Employees Located Within California
Remote Employees Located Outside of California
Exempt/Non-Exempt Status*
Full-Time/Part-Time Status*
Total Hours Worked in 2025 (Including PTO and Sick Leave Hours)
Weeks Worked in 2025 (Including PTO and Sick Leave Hours)*

* New Reporting for 2026 Submissions

** W-2 Box 5 earnings and total hours worked in 2025 are used to determine an employee’s “California Hourly Wage” and then the mean and median hourly wages of each group.

* * * *

For Silberman Law clients with California Pay Data Reporting obligations , we will follow up with you regarding next steps.

If you have questions about California Pay Data Reporting or would like help with this year’s reporting, please contact the Silberman Law professional with whom you work, or simply reply to this Employer Alert.

2026 California Pay Data Reporting

Thu, 22 Jan 2026 21:50:54 GMT

2026 California Pay Data Reporting is

Coming . . . With New Reporting Requirements

Reports Due May 13, 2026

Annual California Pay Data Reporting is upon us again. This year’s deadline, for both Payroll

Employee and Labor Contractor Employee Reports, is May 13, 2026.

California recently released “preliminary” report templates and FAQs that include additional data requirements new for 2026 reporting , which we describe below. These preliminary documents are subject to further change by California before the 2026 reports are due. Our firm will monitor these developments and will provide an updated Alert if there are further changes.

Who Must File?

California requires employers with 100 or more employees, nationwide, and with at least one employee in California, to file a Payroll Employee Report. This includes employees who:

1. Physically work at a location in California;

2. Are remote/home-based employees who are physically located in California; or

3. Reside outside of California but report into a California location.

In addition, employers who were provided, nationwide, with 100 or more workers by an

employment agency or other third party (Labor Contractor) in 2025, and at least one of those workers were physically located in California, or reported into a California location, must also file a Labor Contractor Employee Report.

What is Reported?

Both Payroll Employee and Labor Contractor Employee Reports have the same reporting

requirements:

1. A single pay period is selected between October 1 and December 31, 2025 to determine

which employees are to be included in the report.

2. The data required to be reported for employees and labor contractor employees includes:

a. Establishment

b. Pay Band

c. EEO-1 Job Category

d. Race/Ethnicity and Sex

e. Mean and Median Hourly Wage of Similarly Grouped Employees**

f. Remote Employees Located Within California

g. Remote Employees Located Outside of California

h. Exempt/Non-Exempt Status*

i. Full-Time/Part-Time Status*

j. Total Hours Worked in 2025 (Including PTO and Sick Leave Hours)

k. Weeks Worked in 2025 (Including PTO and Sick Leave Hours)*

* New Reporting for 2026 Submissions

** W-2 Box 5 earnings and total hours worked in 2025 are used to determine an employee’s

“California Hourly Wage” and then the mean and median hourly wages of each group.

Expanded Reporting Requirements for 2026

Although not yet finalized, California has released preliminary report templates and FAQs relating to the changes this year for both Payroll and Labor Contractor Employee Reporting –

1. Payroll and Labor Contractor Employee Report templates and pay bands have been updated

for 2026.

a. Employers must use the updated templates. The Reporting Portal will reject submissions using prior year versions of the templates.

2. Whether employees are exempt or non-exempt.

3. Whether employees are full-time or part-time.

4. Total number of weeks an employee worked in 2025.

a. Total hours worked in 2025 remains a reporting requirement as well as weeks worked.

The California Civil Rights Department (CRD) has released preliminary Report Templates and Frequently Asked Questions . We anticipate the California Pay Reporting Portal will open in February 2026 and provide employers with the finalized 2026 Reporting Instructions, FAQs and Report Templates.

And, More Reporting Changes Are Slated for 2027

Currently, the California Pay Data Reports aligns with the 10 EEO-1 job categories. For 2027

reporting, employers will be required to use 23 job categories, generally aligning with the Standard Occupation Classification (SOC) groups. Because there is no current exact mapping to the new job categories, this transition will require time and effort.

Employers should start planning before 2027 to allow sufficient time to re-map their current EEO-1 categories to the new, expanded job categories.

* * * *

If you have questions about California Pay Data Reporting or would like help with this year’s

reporting, please contact the Silberman Law professional with whom you work, or simply reply to this Employer Alert.

www.silbermanlawpc.com

Greatly Expanded IPEDS Reporting for Colleges & Universities Approved by Trump Administration

Wed, 21 Jan 2026 21:41:29 GMT

Greatly Expanded IPEDS Reporting for

Colleges & Universities Approved by

Trump Administration

Submission of Seven Years of Detailed Data Due by

March 18, 2026

The Data Will Be Used for Potential Discrimination Investigations

First, the good news – if you are not employed at a college or university, you can stop here. For those in higher education, you’re going to want to read on.

Last year, we shared that the National Center for Education Statistics (NCES) proposed major changes to Integrated Postsecondary Education Data System (IPEDS) annual reporting. The changes would significantly expand reporting obligations to include detailed data on applicants for admission, admitted students, and enrollees through a new reporting tool, the Admissions and Consumer Transparency Supplement (ACTS).

It's now official, ACTS has been approved and, effective immediately, is required as part of the IPEDS 2025-2026 data submission cycle.

Many U.S. colleges and universities must submit detailed data for the last seven academic

years by March 18, 2026. However, some of the larger university systems will have until April 1, 2026.

What Colleges and Universities Need to Know

Objective: To identify unlawful discrimination practices that run afoul of Title VI of the Civil Rights Act and recent Supreme Court case law.

Covered Institutions: Public, private for-profit, and private not-for-profit institutions that primarily award bachelor’s degrees or above.

Scope of reports: Detailed data on undergraduate and graduate applicants, admitted students, enrolled students, and completers for the last seven academic years.

Data Components: Race/ethnicity, sex (male/female only), admission status, admission type (i.e., early action, early decision, regular), standardized test scores, GPA, family income, Pell Grant eligibility, parental education, institutional aid, merit-based aid, other types of aid, graduation rates, and field of study.

How Will the Trump Administration Use the Data?

NCES and the U.S. Department of Education (DOE) will use the data to scrutinize whether

colleges and universities are unlawfully favoring certain individuals based on race/ethnicity or sex in admission decisions in violation of the Supreme Court’s 2023 ruling in Students for Fair Admissions v. President and Fellow of Harvard College in which the Court held that race-conscious admission practices violate the Constitution.

We expect Trump Administration enforcement agencies will launch investigations, and possibly litigation, against colleges and universities whose data trends indicate potential unlawful discrimination in the admissions process.

What Should Colleges and Universities Do Now?

Gather and assess current and historical data
Assemble a taskforce of stakeholders such as institutional research, admissions, financial aid, and legal
Carefully consider conducting proactive, privileged analyses on the data to identify and assess risk, and prepare for possible investigations and litigation

If you have any questions or want to discuss, simply reply to this email or contact the Silberman Law legal professional with whom you work.

www.silbermanlawpc.com

2026 Massachusetts EEO-1 Reporting

Wed, 14 Jan 2026 21:31:25 GMT

Massachusetts EEO-1 Reporting Deadline February 2, 2026

 Which Employers Must Report?

Private employers, with at least 100 employees in Massachusetts, that are required to file federal EEO-1 Reports, must submit to the state copies of its EEO-1 Reports covering all Massachusetts locations.

The Confusion Regarding "Wage Data Reports"

There continues to be understandable confusion about the law’s reporting requirements. The law requires covered Massachusetts employers to submit a “wage data report” to the state annually. The definition of “wage data report” includes EEO-1 Reports for private employers and separately EEO-4 Reports for state and local governments.

While EEO-1 Reports do not currently include pay data, EEO-4 Reports do require pay data

reporting.

The EEOC formerly collected pay data as part of EEO-1 Reporting for calendar years 2017 and 2018, but that collection was discontinued and we do not expect it to return during the Trump administration.

If the EEO-1 reporting requirements are revised in the future to include pay data reporting, only then will private employers in Massachusetts be required to include pay data reporting in its submissions to the state.

Key Employer Takeaways

The law requires private employers subject to the law to submit their Massachusetts EEO-1

Reports to the Portal by February 2, 2026.

Despite the law’s language describing the reporting requirement as a “wage data report”, there is no requirement for private employers to submit wage data.

Multi-state employers are only required to submit EEO-1 Reports for Massachusetts locations.

If you have questions or want assistance filing your EEO-1 Reports with Massachusetts,

simply reply to this email or contact the Silberman Law legal professional with whom you work.

www.silbermanlawpc.com

New Executive Order on Artificial Intelligence

Fri, 12 Dec 2025 21:22:03 GMT

President Trump Issues Executive Order on Artificial Intelligence

On December 11, 2025, President Trump issued an Executive Order entitled “ Ensuring a National Policy Framework for Artificial Intelligence. ” The accompanying Fact Sheet states the EO is meant to “protect American AI innovation from an inconsistent and costly compliance regime resulting from varying State laws.”

The EO signals an aggressive federal move to centralize AI regulation, reduce compliance

burdens, and challenge varying state AI requirements and restrictions viewed by the Administration as obstructing innovation.

Key Features of the Executive Order:

AI Litigation Task Force (Department of Justice): Launches within 30 days with the goal to first identify and later bring legal challenges by the federal government against state AI laws that conflict with federal policy.

Nationwide Review of State AI Laws (Department of Commerce): A 90-day report will flag state rules deemed “onerous” or inconsistent with federal priorities.

Funding Leverage: States enforcing conflicting AI rules may lose eligibility for certain federal

funding.

Federal Preemption Moves (Multiple Agencies): Within 90 days, federal agencies are directed to issue guidance on whether to adopt a federal reporting and disclosure requirement, whether state-level AI requirements are preempted by federal requirements, and/or whether state-level AI lawsrun afoul of existing federal law (such as the FTC’s unfair and deceptive trade rules).

Legislative Push: The Administration will seek to propose a uniform federal AI statute designed to override inconsistent state laws.

Expected Litigation Challenging the EO: We anticipate legal challenges by states and third-

parties asserting that the Administration does not have authority to seek to preempt state laws, as that historically only has been permitted by an act of Congress, not by Presidential Executive Order.

What This Means for Employers

Employers operating across multiple states may ultimately benefit from reduced regulatory fragmentation if a national standard is enacted and upheld.
Prepare for a period of legal uncertainty as federal–state tensions escalate.
During that period, continue to comply with state AI laws in the states in which your company operates.
Work with legal counsel to closely track legal developments and agency guidance as standards and requirements may shift quickly.
Ensure continued compliance with federal and state anti-discrimination laws.

If you have any questions or need help with AI legal compliance, selecting and implementing new AI tools in the workplace, or preparing AI bias audits, simply reply to this email or reach out to the Silberman Law attorney with whom you work.

www.silbermanlawpc.com

Government Increases Contract Thresholds for Affirmative Action Plan Obligations Under Section 503 and VEVRAA

Tue, 25 Nov 2025 19:14:21 GMT

Government Increases Contract Thresholds for Affirmative Action Plan Obligations Under Section 503 & VEVRAA

Covered Government Contractors Must Prepare Annual AAPs Under Section 503 & VEVRAA - Are You In Compliance

The law requires that, every five years, the monetary thresholds triggering federal contractor Affirmative Action Plan obligations under Section 503 of the Rehabilitation Act and VEVRAA are adjusted for inflation.

Effective October 1, 2025, the new thresholds are:

Section 503:

A single federal contract of $50,000 or more (up from $20,000) and
At least 50 employees

VEVRAA:

A single federal contract of $200,000 or more (up from $150,000) and
At least 50 employees

Affirmative Action Compliance with 503 & VEVRAA is More Important Than Ever

With the revocation of Executive Order 11246, some federal contractors have overlooked their Section 503 and VEVRAA annual Affirmative Action Plan obligations – which have not changed – but that could be a harmful mistake for several reasons.

Potential Big False Claims Act Liability

Pursuant to President Trump’s Executive Order 14173 “Ending Illegal Discrimination and Restoring Merit-Based Opportunity”

“compliance in all respects with all applicable Federal anti-discrimination laws is material to the government’s payment decisions…”

Federal contractors cannot accurately represent they comply if they are not annually preparing written Affirmative Action Plans “at each establishment” (41 C.F.R. § 300.40(b) and 41 C.F.R. § 741(b)(2)), as well as complying with the many other regulatory requirements, such as conducting outreach and assessing the effectiveness of such outreach.

The risk is real. The current Administration is weaponizing the False Claims Act (FCA) to impose liability on federal contractors and other employers in a variety of areas. FCA claims may be pursued not only by the federal government, but also by employees and anyone else with knowledge that a federal contractor has “knowingly” made a false claim for payment to the federal government.

Liability under the FCA can be severe because it allows for civil penalties, treble damages, and recovery of legal fees. As an example of the government’s forceful use of the FCA, it recently settled for $4 million an FCA claim that a federal contractor violated employment eligibility requirements by failing to comply with E-Verify obligations.

Audits May Resume

With a new OFCCP Director (as well as an EEOC quorum) audits of Section 503 and VEVRAA compliance may resume – conducted either by OFCCP or by the EEOC (Section 503) or by the Veterans Employment Training Service (VEVRAA).

Employee Complaints

It has always been the case that federal contractor employees can lodge complaints with OFCCP under Section 503 and VEVRAA, which may include complaints that their federal contractor employer is out of compliance.

Compliance Means Preparing Affirmative Action Plans for 2026, and 2025

With all OFCCP, and related big changes of 2025, it is understandable that some federal contractors may not have prepared plans for 2025. That should be remedied because the data for 2025 plans is also important to 2026 plans. Recall that effectiveness of outreach efforts is, in part, gauged by trends in applicant and hire numbers for Veterans and Individuals with Disabilities. Without data from 2025 no trend analysis is possible.

Audits are also a look back at what a contractor has done to advance employment opportunities for Veterans and Individuals with Disabilities during the prior 12 months – meaning an audit of a 2026 plan will evaluate efforts taken during 2025. If a contractor has no 2025 plan or program – let alone no 2026 plan – an audit will be more challenging and could result in violations and a conciliation agreement.

Possible Changes to Section 503 Regulations May Not Impact 2026 Obligations

While the current Administration has proposed changes to Section 503 obligations, to which many have vociferously objected, those regulations – if implemented – are not likely to be effective for 2026 plans, especially for those contractors with a January 1, 2026 plan date.

* * * *

If you have any questions or would like assistance with Section 503 and VEVRAA compliance, simply reply to this Alert or reach out to the Silberman Law attorney with whom you work.

Update on the Government Shutdown & I-9

Thu, 09 Oct 2025 15:18:04 GMT

E-Verify System Has Re-Started and Is Operational

USCIS Has Provided Detailed Guidance to Address Backlog

As a follow-up to our Alert on this topic earlier this week, U.S. Citizenship and Immigration Services (USCIS) announced today that E-Verify has resumed operations.

The announcement provides detailed guidance for catching up after the period during which E-Verify was unavailable due to the government shutdown.

If you have any questions or need assistance, simply reply to this email or reach out to the Silberman Law attorney with whom you work.

www.silbermanlawpc.com

Massachusetts Job Posting Pay Transparency Requirements Become Effective October 29, 2025

Wed, 08 Oct 2025 19:29:43 GMT

Massachusetts Job Posting Pay Transparency Requirements Become Effective October 29, 2025

Pay Ranges Must Be Included in Job Postings and Provided to Employees and Applicants

Joining an ever-growing list of states, Massachusetts enacted the Frances Perkins Workplace Equity Act (the Act), which includes new job posting pay transparency requirements.

Pay Range Disclosures

Effective October 29, 2025 , Massachusetts employers with 25 or more employees must establish a pay range for each position and disclose that pay range in all job postings. A “pay range” is defined as “the annual salary range or hourly wage range that the employer reasonably and in good faith expects to pay for such a position at that time.”

In addition, the law provides employees and applicants have a right to know the pay range when applying for a position, upon promotion, transfer, when otherwise starting a new role, and upon request while in their current position . Employers are also prohibited from retaliating against employees who seek to exercise their rights under the law.

Employers must disclose pay ranges, in compliance with the law, no later than October 29, 2025.

Penalties for Non-Compliance

Employers that fail to comply are subject to the following penalties:

A warning for the first offense;
A fine of not more than $500 for the second offense;
A fine of not more than $1,000 for the third offense; and
A fourth or subsequent offense shall be subject to civil fines increasing from $2,500 to $7,500.

The Act also provides a “two-business-day cure period” until October 29, 2027. Until that date, employers will have two business days to cure defects upon receipt of a Notice to Cure letter from the state Attorney General’s Office.

If you have any questions regarding these new Massachusetts requirements, simply reply to this Alert or reach out to the Silberman Law attorney with whom you work.

The Government Shutdown & I-9 Compliance

Tue, 07 Oct 2025 15:14:45 GMT

During the Ongoing Federal Government Shutdown, E-Verify is Down But I-9 Employment Verification Obligations

are Still in Effect

How Should Employers Comply?

As we enter the second week of the federal government’s shutdown – with no immediate end in sight – employers should carefully consider what has changed regarding E-Verify and I-9 compliance, and what has not.

Important Note – E-Verify compliance and completion of I-9 Forms are two distinct requirements , with E-Verify needed for only certain categories of employers while I-9 Forms are required for all employers.

What Has Happened Since the Shutdown?

Effective October 1, USCIS closed the E-Verify portal, not allowing the creation of any new cases, or additional documents being uploaded regarding pre-existing cases.

As noted above, for some employers, E-Verify is a voluntary service but for many employers, E Verify compliance is mandatory. Employers mandated to comply include –

Federal contractors
Employers operating in states that mandate E-Verify be used if thresholds are met, including Florida, Georgia, Utah, North Carolina and Tennessee
An employer that has a court order requiring that it use E-Verify

To date, USCIS has provided no official guidance except that the current shutdown has suspended the obligation that required employers create an E-Verify case for a new employee no later than three business days after the employee’s first day of work for pay – often called the “three-day rule.”

E-Verify and I-9 Best Practices for Employers During the Shutdown I-9 Forms Must Be Completed as Usual

A completed I-9 does not become optional because E-Verify is unavailable. Employers must continue to timely complete I-9s for new employees. Once E-Verify “re-opens”, those employers required to do so will need to retroactively submit any new cases which occurred during the shutdown.

Employers still should –

Ensure new employees complete Section 1 of the I-9 Form on or before their first day of work; and
Complete Section 2 of the same I-9 Form within three business days of the employee’s start date.

E-Verify Mismatches (Tentative Non-Confirmations)

Employees are also unable to resolve any E-Verify mismatches that E-Verify generated prior to the system shutdown. Unofficial guidance provided stated that, when the system becomes available, the number of days that E-Verify was unavailable would not count against the number of days employers and employees have to begin resolving their mismatches.

While E-Verify is down, employers should take no adverse action against any employee because of an E-Verify mismatch, including terminating, suspending, or withholding training, hours or pay.

For Federal Contractors – One More Recommendation

The Federal Acquisition Regulation (FAR) requires contractors to use E-Verify as a contract condition, but deadlines will pass during the shutdown. Federal contractors with a FAR clause should contact their contracting officer, if necessary, to inquire about extending any contractual deadlines, in the absence of any guidance from USCIS.

If you have any questions regarding E-Verify or your I-9 obligations, simply reply to this email or reach out to the Silberman Law attorney with whom you work.

www.silbermanlawpc.com

California AI Rules Go into Effect Today - What Employers Need to Know

Wed, 01 Oct 2025 15:10:17 GMT

California Artificial Intelligence Regulations Take Effect Today, October 1, 2025

What Do Employers Need to Know, and Do?

Today, new regulations governing the use of artificial intelligence (AI) in employment decisions go into effect in California. The new regulations are amendments to regulations under California’s Fair Employment and Housing Act (FEHA), which prohibits discrimination in employment and other areas.

In practical terms, the regulations confirm that employers’ use of “automated decision systems” (ADS) to make, or “facilitate” the making of, employment decisions can violate the anti discrimination provisions of FEHA.

The new regulations create a strong incentive for employers to conduct proactive bias audits of AI tools used in employment to assess compliance with the law and to identify and address potential discrimination.

We provide below our recommendations for employers as well as a description of the regulations/new requirements .

First, Our Recommendations

Silberman Law recommends CA employers consider the following steps/actions to ensure compliance with California’s updated regulations:

Get Ahead and Stay Ahead of the Curve – Create an internal task force to address quickly evolving AI regulations. The task force should include, at least, members from HR, TA, IT, and Legal.
Carefully Inventory AI Tools Being Used – Take inventory of tools used to make employment decisions and categorize each as within or outside the scope of the amended regulations.
Create Guardrails – Create clear rules on the adoption and use of ADS for employment decisions. Train personnel who use these tools on the rules and risks associated with non compliance.
Conduct Risk Assessment Audits – Conduct regular bias audits to evaluate whether AI tools result in disparities based on race, ethnicity, sex, or any other categories protected by law. Consider the quality, efficacy, recency, and scope of any bias audits.
Cloak It In Legal Privilege – Conduct this important, sensitive work under legal privilege with a thoughtful strategy on if (and how) to disclose/present, and/or respond to, results.

And Now, the Substance

The regulations define an ADS as “[a] computational process that makes a decision or facilitates human decision-making regarding employment,” including processes that “may be derived from and/or use artificial intelligence, machine-learning, algorithms, statistics, and/or other data processing techniques.”

The regulations define AI as “[a] machine-based system that infers, from the input it receives, how to generate outputs,” which can include “ predictions , content, recommendations , or decisions.”

Examples of covered decisions and tools include, but are not limited to –

Screening resumes for key words and terms or patterns;
Assessing applicants or employees with “questions, puzzles, games, and other challenges;” Directing job advertisements to targeted groups;
Evaluating facial expressions and speech and voice patterns in online interviews;
Analyzing applicant or employee information from third parties.

Bottom line – The regulations govern a broad range of AI tools that either replace or facilitate human decision making.

Pre-Employment Practices

An often-touted benefit of employment-based AI tools is greatly increased efficiency in the hiring process. However, the regulations provide examples of common AI tools that, while presumably providing that hoped-for efficiency in decision-making, may also result in unlawful employment discrimination.

Some examples from the regulations include –

An ADS “that, for example, measures an applicant’s skill, dexterity, reaction time, and/or other abilities or characteristics may discriminate against individuals with certain disabilities or other characteristics protected under the Act.” Without affording a reasonable accommodation, the ADS may result in unlawful discrimination.
An ADS that “analyzes an applicant’s tone of voice, facial expressions or other physical characteristics or behavior may discriminate against individuals based on race, national origin, gender, disability, or other” protected characteristic, and may therefore result in unlawful discrimination.
Employers cannot use an ADS or any “online application technology” that “limits, screens out, ranks, or prioritizes applicants based on their schedule” if it has a disparate impact on applicants based on their religion, disability or medical condition, unless the technology is “job-related and consistent with business necessity” and “includes a mechanism for the applicant to request an accommodation.”

Unlawful Medical or Psychological Inquiries

Employers are generally prohibited from requiring medical or psychological examinations before extending an offer of employment. Here, the regulations extend the term “medical or psychological examination” to those administered through an ADS. The regulations add that an ADS such as “a test, question, puzzle, game, or other challenge that is likely to elicit information about a disability” could be a medical or psychological inquiry, which may fall within FEHA’s general prohibition.

Criminal History

The new FEHA regulations also extend existing criminal history rules to “inquiring about criminal history through ... the use of an automated-decision system.”

Third-Party Agent Liability

Echoing a theme in the current litigation against Workday, the regulations expressly extend liability for ADS discrimination to employers’ agents. The regulations define “agents” to include “any person acting on behalf of an employer, directly or indirectly, to exercise a function traditionally exercised by the employer or any other FEHA-regulated activity ... including when such activities and decisions are conducted in whole or in part through the use of an automated decision system.”

Encourages Employer Proactive Anti-Bias Testing

Throughout the new regulations, California reiterates that anti-bias testing or similar proactive efforts to avoid unlawful discrimination (or the lack thereof) are relevant when asserting or defending against a claim of ADS discrimination. So, while California does not mandate that employers conduct bias audits or analyses, thorough testing of all AI tools may be the money most well-spent in the world of employment-based AI tools.

If you need assistance with AI compliance or have any questions, simply reply to this email or reach out to the Silberman Law attorney with whom you work.

www.silbermanlawpc.com

U.S. DOL Policy Advisor, Ashley Romanias, to be New OFCCP Director

Tue, 30 Sep 2025 21:04:36 GMT

OFCCP Director Catherine Eschbach Leaving for EEOC Attorney Role

U.S. DOL Policy Advisor, Ashley Romanias, To Be New OFCCP Director

Silberman Law has learned that OFCCP Director Catherine Eschbach – appointed in March, 2025 – will depart OFCCP and become the Principal Deputy General Counsel at EEOC.

Ashley Romanias, currently a DOL Senior Policy Advisor, will be the new OFCCP Director.

It is likely Ms. Eschbach will take lessons learned regarding OFCCP investigation processes and procedures to her new attorney’s role at EEOC.

Since early in President Trump’s second term, EEOC has had two Commissioners, thus lacking a “quorum” (minimum of three out of five Commissioners), generally necessary for EEOC to implement new policies and make significant changes to the Commission’s enforcement priorities.

Among those enforcement priorities, EEOC has indicated it will investigate employers’ DEI (under whatever name) programs for potential violations of federal anti-discrimination laws.

On May 6, 2025, President Trump nominated Brittany Panuccio to fill a vacancy as Commissioner. If confirmed by the Senate, which appears likely, this will restore the Commission's quorum.

New OFCCP Director, Ashley Romanias, joined DOL in July 2025. Prior to that, she worked as the Assistant Director, Executive Compensation, at the Federal Housing Finance Agency for nearly four years, as well as at several prominent law firms.

We will provide updates as we learn more.

If you have any questions, simply reply to this Alert or reach out to the Silberman Law attorney with whom you work.

U.S. Department of Justice Launches “Civil Rights Fraud” Investigations Against Government Contractors

Tue, 09 Sep 2025 15:02:01 GMT

U.S. Department of Justice Sends Out First Wave of Letters Launching Civil Rights Fraud Initiative Investigations

For Government Contractors, Significant Potential False Claims Act Exposure

The U.S. Department of Justice (DOJ) has initiated a wave of investigations into government contractors’ current and former Diversity, Equity & Inclusion (DEI) programs. The investigations are focused on potential violations of the False Claims Act (FCA), which can result in significant monetary exposure for those employers targeted for investigation.

Thus far, we have learned about 10 investigations against employers across several industries, including defense, automotive, pharmaceutical, and higher education. The DOJ has sent Civil Investigative Demand (CID) letters to the targeted entities. CIDs allow the DOJ to demand wide ranging documents, employee data and other information, as well as interviews with relevant company personnel, and are often a prelude to litigation under the FCA.

Background

In January 2025, President Trump issued Executive Order 14173 – Ending Illegal Discrimination and Restoring Merit-Based Opportunity – which coined the term “illegal DEI” and, among other actions:

Makes compliance with all applicable federal anti-discrimination laws a “material” provision of all federal contracts and grants of federal funds; and,
Requires contractors to certify they do not operate any programs promoting “illegal DEI.”

Pursuant to Executive Order 14173 , in May, the DOJ issued a Memo announcing its “Civil Rights Fraud Initiative ” to enforce the FCA against entities that receive federal funds while “engaging in racist preferences, mandates, policies, programs, and activities, including through diversity, equity, and inclusion (DEI) programs that assign benefits or burdens based on race, ethnicity, or national origin.”

That Memo was followed in June by another DOJ “ Civil Division Enforcement Priorities ” Memo stating, that consistent with the Initiative, the DOJ “is committed to advancing the Initiative and will aggressively investigate and, as appropriate, pursue False Claims Act violations against recipients of federal funds that knowingly violate civil rights laws.”

The DOJ has authority to issue CID letters when the Attorney General “has reason to believe that any person may be in possession, custody, or control of any documentary material or information relevant to a false claims law investigations…”

CIDs are a powerful pre-litigation tool used in cases involving potential violations of the FCA.

What's at Stake?

The DOJ is deploying the FCA against federal contractors, and it is a hefty weapon.

If found liable under the FCA, employers would be required to pay “treble” (generally triple) damages – meaning if a contractor received $5 million from the government, $15 million in liability – in addition to penalties up to $28,000 per invoice sent to the government, as well as contract suspension/future debarment.
The FCA does not require actual knowledge. It defines “knowingly” to include acting with deliberate ignorance or reckless disregard of the truth or falsity of information an entity presents to the government.
Whistleblowers (your employees, former employees, rejected applicants) may report alleged “illegal DEI” or alleged discrimination – known as “Qui Tam” claims – and the DOJ “encourages anyone with knowledge of discrimination by federal fund recipients to report that information to the appropriate federal authorities” for investigation and potential litigation. Whistleblowers also may file their own FCA lawsuits in which the government may choose to intervene.

What Should Employers Do?

Federal fund recipients should be on the alert for CID letters from the DOJ, which are typically sent to an entity’s senior leadership or legal department.
Employers should thoroughly review and understand all current and recent “DEI”, Affirmative Action, and other EEO practices and programs for any indication of what the Administration may consider either “illegal DEI” or other violation of federal anti-discrimination law.
If your organization does receive a CID letter, quickly consult with counsel to develop a strategy regarding both communicating with the DOJ and scope of substantive response.

If you have questions or would like assistance, please contact the Silberman Law attorney with whom you work or simply respond to this email.

www.silbermanlawpc.com

Expanded IPEDS Reporting May Create Significant Risk for Colleges & Universities

Mon, 08 Sep 2025 14:53:10 GMT

Expanded IPEDS Reporting May

Create Significant Risk for

Colleges & Universities

First, the good news – if you are not employed at a college or university, you need not read further. For those in higher education, please read on.

The National Center for Education Statistics (NCES) has proposed major changes to Integrated Postsecondary Education Data System (IPEDS) annual reporting. The proposal seeks to significantly expand reporting obligations to include more detailed, disaggregated data on applicants for admission, admitted students, and enrollees through a new reporting tool, the Admissions and Consumer Transparency Supplement (ACTS).

NCES and the U.S. Department of Education (DOE) will use the expanded data to scrutinize whether colleges and universities are unlawfully favoring certain races and genders in admission decisions.

Highlights of the Proposal:

Objective: To identify unlawful practices that run afoul of Title VI of the Civil Rights Act and recent Supreme Court case law
Reporting Institutions: All four-year institutions that use selective student admissions
Scope of reports: Undergraduate, and graduate, student data for 2025/2026 academic year as well as five prior academic years
Data Components: Race, sex, admission status, admission type (i.e., early action, early decision, regular), standardized test scores, GPA, family income, Pell Grant eligibility, parental education, institutional aid, merit-based aid, other types of aid, graduation rates, and field of study

This proposal stems from President Trump’s and DOE Secretary McMahon’s recent calls for increased transparency by colleges and universities regarding student admission decisions to determine compliance with the Supreme Court’s ruling in Students for Fair Admissions v. President and Fellow of Harvard College in which the Court held that race-conscious admission practices violate the Constitution.

If finalized, institutions will face greatly expanded data collection, retention, and reporting obligations, and substantially greater compliance risks.

What Should Colleges & Universities Do Now?

Carefully review the proposed requirements
Confirm access to current and historical data
Assemble a taskforce of stakeholders such as institutional research, admissions, financial aid, and legal
Consider conducting proactive, privileged statistical analyses on the data to assess risk and prepare for possible investigations

The proposal seeks comments, with the cutoff date for submission being October 14, 2025.

If you have any questions or want to discuss, simply reply to this email or contact the Silberman Law legal professional with whom you work.

www.silbermanlawpc.com

This Guidance Offers Employers a 'Roadmap' to How the Administration Interprets Many Corporate DEI and EEO Practices, and Where Risk May Be Present

Fri, 08 Aug 2025 21:22:25 GMT

Still Wondering What "Illegal DEI" Means?

U.S. Department of Justice Issues Guidance with Useful Detail, Examples & Best Practices

This Guidance Offers Employers a "Roadmap" to How the Administration Interprets Many Corporate DEI & EEO Practices, & Where Risk May Be Present

First, the Context – President Trump’s Executive Order 14173, “Illegal DEI”, and the Impact of the New Guidance

On January 21, 2025 President Trump issued Executive Order (EO) 14173 “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” which, among other things, coined the term “illegal DEI.”

Illegal DEI and DEIA policies not only violate the text and spirit of our longstanding Federal civil-rights laws, they also undermine our national unity, as they deny, discredit, and undermine the traditional American values of hard work, excellence, and individual achievement in favor of an unlawful, corrosive, and pernicious identity-based spoils system.

However, the EO did not define “illegal DEI”. Employers were left to try to interpret the EO’s meaning regarding “illegal DEI” and how to apply it, in practical terms, to employers’ DEI and EEO practices.

Importantly, one part of EO 14173 states that federal contractors soon would be required to certify compliance with all applicable federal non-discrimination laws and also that employers do not maintain employment practices that promote “illegal DEI”.

Several lawsuits have followed challenging the certification requirement, in part, based on the argument that “illegal DEI” is not defined in any law, regulation, or government guidance, and therefore the term is unconstitutionally vague and the certification requirement is unlawful.

With this new detailed Guidance, the Administration seeks to define with specificity, and provide examples of and best practices to avoid, illegal DEI. As such, the Guidance provides a practical ‘benchmark’ for employers to assess their DEI and EEO programs. It also may provide the Administration with a persuasive argument allowing courts to conclude the “certification” requirement is lawful.

Next, The Guidance

On July 29th, Attorney General Pam Bondi issued a Memorandum entitled “ Guidance For Recipients Of Federal Funding Regarding Unlawful Discrimination ” (the Guidance) that seeks to – and to a good extent does – provide practical guidance regarding “the application of federal antidiscrimination laws to programs or initiatives…, including those labeled as Diversity, Equity, and Inclusion ("DEI") programs”.

The Memo provides clear insights into what the Administration considers “Unlawful Discriminatory Policies And Practices.” It includes specific, practical detail, as well as best practices employers may consider to avoid “illegal DEI.”

In essence, the Guidance wants employers to ensure all employment programs and practices recognize only two genders, are wholly race/ethnicity blind, and focus exclusively on merit.

An open question is whether at least some of the Guidance’s examples of “illegal DEI” may go beyond existing federal anti-discrimination law. However, it provides important clarity and insight regarding how the Administration interprets those laws, and how the Administration may seek to enforce those laws against employers that receive federal funds.

Key Takeaway

We encourage employers to analyze the Guidance and use it as a benchmark against existing DEI (even if you no longer use that term) and EEO programs and practices. This exercise should allow your organization to identify and assess potential risks, and determine your acceptable level of risk tolerance.

If you have questions or would like assistance, please contact your Silberman Law legal professional or simply respond to this Alert .

A Reminder that, Regarding AAPs for Veterans & Individuals with Disabilities, OFCCP is 'Open for Business'

Tue, 05 Aug 2025 21:36:37 GMT

OFCCP Updates Veteran Hiring Benchmark to 5.1%

A Reminder that, Regarding AAPs for Veterans & Individuals with Disabilities, OFCCP is 'Open for Business'

The day after President Trump took office, he signed Executive Order (EO) 14173 “Ending Illegal Discrimination and Restoring Merit-Based Opportunity”. That EO, among other things, eliminated affirmative action requirements for federal contractors r egarding race and gender . Many contractors assumed affirmative action in general had gone away.

However, OFCCP continues to enforce government contractors’ affirmative action obligations regarding military Veterans – under VEVRAA – and Individuals with Disabilities – pursuant to Section 503 of the Rehabilitation Act.

Contractors still must ensure compliance with these laws which, among other things, require the annual preparation of Affirmative Action Plans (AAPs).

OFCCP recently reminded us of those obligations when it updated the Veteran Hiring Benchmark to 5.1% effective July 30, 2025.

The Hiring Benchmark requirement states that –

Contractors required by the Vietnam Era Veterans' Readjustment Assistance Act (VEVRAA) to develop a written affirmative action program (AAP) must also establish a hiring benchmark for protected veterans every year, or adopt the national benchmark…as part of their AAP update.

On July 2, 2025, DOL Secretary’s Order 08-2025 lifted a hold on OFCCP’s enforcement regarding Section 503 and VEVRAA, stating that –

Contractors are reminded, however, that Section 503 and VEVRAA, along with their implementing regulations, remain in effect and contractors should continue to comply with their obligations under the Section 503 and VEVRAA regulatory schemes.

The “Bottom Line” – OFCCP is once again ‘open for business’ regarding enforcement of contractor’s affirmative action requirements for Veterans and Individuals with Disabilities.

Contractors should ensure they have prepared AAPs this year in compliance with VEVRAA and Section 503.

Important Note – A contractor that has not prepared current Section 503 and VEVRAA AAPs and then represents – in federal contracts or other document/certification – that it is in compliance with federal law, is creating significant legal risk, including under The False Claims Act , which this Administration has announced it will use as a robust tool against federal contractors who misrepresent their compliance with the law.

If you have questions or want to discuss, please contact your Silberman Law legal professional, or simply reply to this Alert .

U.S. DOL/DOJ to Decide Whether to Appeal the Ruling

Thu, 31 Jul 2025 08:43:46 GMT

U.S. DOL/DOJ to Decide Whether to Appeal the Ruling

Contractors Need Not Do Anything Pending that Decision

Background

Over the last several years, the U.S. Department of Labor (DOL) – represented by the U.S. Department of Justice (DOJ) – has battled in federal court with The Center for Investigative Reporting (CIR) over CIR’s Freedom of Information Act (FOIA) request to OFCCP for all federal contactor EEO-1 Reports for the years 2016 through 2020.

After a California District Court ruled in late 2023 that these EEO-1 Reports are not protected from FOIA disclosure, DOL appealed that decision to the 9th Circuit Court of Appeals.

DOJ/DOL now must decide whether to appeal the 9th Circuit’s decision to the United States Supreme Court.

Until that decision is made and announced, federal contractors do not need to take any action. We will provide an Employer Alert update after DOJ/DOL decision regarding the potential appeal is announced.

9th Circuit Says EEO-1 Reports Not "Commercial" Information Exempt from FOIA

As we explained in a previous Employer Alert, the District Court for the Northern District of California ruled that the EEO-1 Reports at issue contain no Exemption 4 “commercial” information because they lack commercial value – information in the EEO-1 Reports would not reveal commercially significant insights about the contractors. Thus, disclosure of the Reports would not result in competitive harm to contractors.

The 9th Circuit arrived at the same conclusion – EEO-1 Reports contain no “commercial” information – via a different route. The court reasoned that information can be “commercial” under Exemption 4 in two specific ways –

[I]t is the object of commerce (designed to [be] profitable), or it has the subject of commerce(pertaining to commerce). In both usages, commerce has its plain meaning of “the exchange of goods or services or the making of a profit.” First, information is the object of commerce—serves a commercial function—and is therefore “commercial” if it is designed to be profitable…That is, if it was made to [be] bought and sold.

Second, information has the subject of commerce — is of a commercial nature — and is therefore“ commercial” if it pertains to business or trade…This includes “records that . . . ‘actually reveal basic commercial operations, such as sales statistics, profits and losses, and inventories…”

The 9th Circuit held that “nothing in the text of Exemption 4 imposes any commercial-value or competitive-harm requirement…Instead, whether information is ‘commercial’ under Exemption 4turns only on whether ‘in and of itself’ it serves a ‘commercial function’ or is of a ‘commercial nature.”

Based on this logic, the court concluded that EEO-1 Reports are not “commercial” under either usage.

The information in the…EEO reports does not have a “commercial” subject within the meaning of Exemption 4. The workforce-composition data in the reports at issue do not describe “the exchange of goods or services or the making of a profit.” They do not disclose any details about the services provided by federal contractors . . .”

The decision goes on to state that –

[The] Department has shown only an attenuated connection between the job-category data and the contractors’ commercial activity. And aggregating such indirect data over multiple years does not make the connection any more direct. (emphasis added)

This final statement appears conclusory and may not appreciate how five consecutive years of changing workforce trends by EEO-1 category may divulge commercial information related to, for example, the ability/capacity for a contractor to provide products or services. Thus, DOL/DOJ may consider appealing the 9th Circuit decision based on this and perhaps for other reasons.

Contractors Do Not Need to Do Anything at This Time

There is nothing for contractors to do currently because the decision to appeal the 9th

Circuit’s ruling to the U.S. Supreme Court, seek a hearing before the entire 9th Circuit, or seek a rehearing is up to DOL.

We will update this Employer Alert as the litigation develops. If you have any questions regarding the release of your EEO-1 Reports, please contact the Silberman Law attorney with whom you work or simply reply here .

OFCCP Invites Submissions from Federal Contractors Regarding Compliance with EO 14173

Mon, 30 Jun 2025 21:51:30 GMT

OFCCP Invites Federal Contractors to Submit Information Demonstrating Compliance with EO 14173 & Non-Discrimination Laws

OFCCP Director’s June 27, 2025 Letter

Background: In January, 2025, President Trump signed Executive Order14173, Ending Illegal Discrimination and Restoring Merit-Based Opportunity , which rescinded Executive Order 11246 – requiring federal contractors implement Affirmative Action Plans for females and race/ethnic minorities – and prohibiting “illegal DEI”, among other actions.

On Friday, June 27, 2025, OFCCP Director Catherine Eschbach issued a letter inviting federal contractors to submit information regarding how they have complied with EO 14173.

"OFCCP now offers federal contractors the opportunity to provide information about their efforts to wind down compliance with the EO 11246 regulatory scheme and ensure full compliance with the Nation’s non-discrimination laws… OFCCP is providing all federal contractors with the opportunity to volunteer information about what actions they have taken in response to EO 14173."

Contractor submissions are due by September 25, 2025 . OFCCP’s Contractor Portal provides further guidance for how to submit information.

What is OFCCP Looking for in Contractor Submissions?

OFCCP invites contractors to provide the following information:

Confirmation that they have reviewed their EO 11246 affirmative action efforts;
An assessment of whether employment or recruitment practices require modification; and
A description of any changes made, and the steps taken, to modify those practices.

Director Eschbach’s letter also encourages contractors to submit “[e]xamples of practices that federal contractors may have undertaken” and “may want to provide information as to the current status” of:

Making trainings, sponsorship programs, leadership development programs, educational funding, or other privileges of employment available only to employees of a certain race or sex;
Placement goals that were based on race or sex;
Ratings by diversity organizations that graded employers on factors that included the provision of resources designed to promote the rise of non-white, non-male employees;
Using applicants’ or employees’ participation in race- or sex related (internal or external) groups or organizations as a “plus factor” or proxy for race or sex in employment and hiring decisions;
Tying executive compensation to meeting race- or sex-based hiring, promotion, retention, representation, or other employee-demographic-related goals;
Mandating courses, orientation programs, or trainings that are designed to emphasize and focus on racial stereotypes; and
Encouraging employees to make recruitment efforts to or employment referrals of certain candidates based on race or sex.

What Will OFCCP do with this Information?

Notably, OFCCP offers no “safe harbor” or other incentive to submit information, nor does it indicate there are penalties for not submitting. As a result, contractors may have differing perspectives on the risks/benefits of submitting information.

* * * *

If you would like to discuss OFCCP’s invitation, or you have questions, please contact the Silberman Law legal professional with whom you work, or simply reply to this Alert .

You Have 20 Days to Complete a Review of, and Make Needed Changes to, Your Policies & Practices to Ensure Compliance - and OFCCP is Coming to Check

Mon, 31 Mar 2025 18:42:51 GMT

The 90 Day "Grace Period" for Winding Down Executive Order 11246 Affirmative Action Programs, and Related Policies, Will End Soon

You Have 20 Days to Complete a Review of, and Make Changes to, Your Policies & Practices to Ensure Compliance - and OFCCP is Coming to Check - Here's What to Do

As most of us know, President Trump’s Executive Order (EO) 14173 “Ending Illegal Discrimination and Restoring Merit-Based Opportunity”, among other things, revoked EO 11246. The new EO allows federal contractors to continue to comply with EO 11246’s regulatory scheme for 90 days. That 90 day “grace period” ends April 20, 2025.

And, based on new OFCCP Director Catherine Eschbach’s comment last week, OFCCP will permit no “grace period” after the “grace period” –

“91 days after the recission of 11246, we will need to verify that all federal contractors have wound down their use of affirmative action plans and implement all enforcement options to ensure President Trump’s executive order have been complied with, including internal OFCCP enforcement mechanisms and/or working with other agencies with relevant enforcement authorities."

So, employers should be ready to demonstrate compliance as soon as the 90 day grace period ends.

Employers should conduct an inventory-review, and make needed changes to, at least –

EEO Policy Statement
EEO “Taglines” in Job Advertisements & Other Outreach and Recruitment Materials
Applicant & Employee Self-ID Invitation forms
Company/Career Website EEO Notices & Language
Employee Handbooks
HR & Talent Acquisition Policies & Training Manuals
EEO Training Materials
Vendor Contracts-Purchase Order Terms & Conditions
Any Other Policies, Documents, or Communications that refer to affirmative action and/or federal contractor EEO obligations

If you have questions or would like assistance conducting this review, simply reply to this Alert or contact the Silberman Law legal professional with whom you work.

Has Plans to Review Prior Audit AAPs to Look for Evidence of Past Employment Discrimination

Tue, 25 Mar 2025 18:31:14 GMT

New OFCCP Director Appointed - Catherine Eschbach

Has Plans to Review Prior Audit AAPs to Look for Evidence of Past Employment Discrimination

The Department of Labor announced today that Catherine Eschbach is the new OFCCP Director. The press release quotes Director Eschbach as saying –

President Trump made clear…that EO 11246 had facilitated federal contractors adopting DEI practices out of step with the requirements of our Nation’s civil rights laws…As Director, I’m committed to carrying out President Trump’s executive orders, which will restore a merit-based system to provide all workers with equal opportunity.

From the Wall Street Journal, we have learned Director Eschbach, in a memo to OFCCP staff, indicated OFCCP’s efforts have been “…out of step, if not flat out contradictory, to our country’s laws, and all reform options are on the table.”

One reform is Director Eschbach’s reported intention to reopen prior audits to search for discriminatory employment practices.

We will be examining federal contractors’ previously submitted affirmative action plans to determine whether they indicate the presence of longstanding unlawful discrimination and whether it is appropriate for OFCCP to undertake any investigation and enforcement actions or refer the matter to other agencies with jurisdiction to investigate and/or initiate enforcement actions.

This may mean OFCCP investigations of statistical evidence of adverse impact against whites and males, or pay disparities to their disadvantage. Likewise, where contractors submitted documents and descriptions regarding their diversity, equity, and inclusion programs, those also may draw scrutiny.

While Director Eschbach’s statements don’t yet paint a full picture, it appears President Trump’s Administration has decided to keep OFCCP “alive” and to deploy the Agency as an enforcer of Executive Order 14173 – Ending Illegal Discrimination and Restoring Merit-Based Opportunity – with a particular focus on “unlawful DEI”.

We will provide updates as events continue to develop.

If you have questions, simply reply to this Alert or contact the Silberman Law legal professional with whom you work.

U.S. 4th Circuit Court of Appeals Lifts Injunction on President Trump’s Anti-DEI Executive Orders

Mon, 17 Mar 2025 18:16:54 GMT

U.S. 4th Circuit Court of Appeals Lifts Injunction on President Trump's Anti-DEI Executive Orders

Federal Agencies Can Move Forward with DEI & EEO Compliance "Certification"

This past Friday, the U.S. Court of Appeals for the Fourth Circuit lifted the nationwide injunction on President Trump's Executive Orders targeting employers’ Diversity, Equity and Inclusion (DEI) programs. This ruling will allow the Administration, and federal agencies, to immediately move ahead with requiring federal contractors to certify compliance with all applicable non-discrimination laws. However, legal challenges continue.

The Fourth Circuit’s order appears to indicate that the three-judge appellate panel believes the Trump Administration is likely to prevail on the merits. While authoring three separate concurring opinions, the judges agreed that the Executive Orders, as written, are not unlawful.

Judge Pamela Harris wrote that:

“The challenged Executive Orders, on their face, are of distinctly limited scope. The Executive Orders do not purport to establish the illegality of all efforts to advance diversity, equity or inclusion, and they should not be so understood. Instead, the so-called “Certification” and “Enforcement Threat” provisions apply only to conduct that violates existing federal anti-discrimination law.”

With this ruling, we expect federal agencies to soon move forward requiring federal contractors and grant recipients to certify that they do not have any programs that violate applicable federal anti-discrimination laws. Below is an example of the certification language federal agencies have been sending to contractors:

Contractor certification regarding compliance with applicable Federal anti-discrimination laws must confirm:

The contractor is in compliance in all respects with all applicable Federal anti-discriminationlaws is material to the government’s payment decisions for purposes of section 31 USC3729(b)(4) (False Claims Act);
The contractor does not operate any programs promoting Diversity, Equity, and Inclusion thatviolate any applicable Federal anti-discrimination laws.

As referred to in “1.” above, employers’ responses to the certification may have significant legal and monetary consequences, including exposure to claims and findings under the False Claims Act. As a result, employers should carefully consider their response to the certification and ensure compliance with applicable anti-discrimination laws before certifying.

Given this development, employers also should conduct a legally privileged DEI risk assessment to ensure all aspects of DEI programs and communications are in compliance with applicable law.

If you have questions about this ruling or its implications for your DEI and EEO legal compliance, simply reply to this Alert or contact the Silberman Law legal professional with whom you work.

Federal District Court Preliminarily Halts Enforcement of Parts of President Trump's Anti-DEI Executive Order

Mon, 24 Feb 2025 22:43:07 GMT

Federal District Court Preliminarily Halts Enforcement of Parts of President Trump's Anti-DEI Executive Order

Administration Likely to Appeal

What Happened?

On Friday, January 21, 2025, the U.S. District Court of Maryland issued a Preliminary Injunction (“PI”) pausing the federal government’s enforcement of three provisions of President Trump’s Anti-Diversity, Equity and Inclusion (“DEI”) Executive Order 14173 “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” (the “DEI EO”).

We expect the Trump administration to quickly appeal the PI.

What the PI does, and doesn’t, do:

It does not address, pause or reverse the revocation of Executive Order (“EO”) 11246 regarding race and gender affirmative action for government contractors. EO 11246 remains revoked and federal contractors continue to have the option to comply with EO 11246’s regulatory scheme until April 21, 2025.
The PI is just that – preliminary – it is not a final decision that any part of the DEI EO is not enforceable. However, it does preliminarily conclude that the paused provisions of the DEI EO are vague and/or infringe on employers’ constitutional right to free speech.
The Administration almost certainly will appeal the decision, and we expect it will be committed to litigating and ultimately prevailing on the enforceability of the DEI EO.

The EO provisions aimed at federal contractors and private employers are the:

Enforcement Threat Provision

As the District Court put it, the EO contains an “Enforcement Threat Provision,” which, among other requirements, directed the Attorney General, in consultation with federal Agency heads, to:

Submit “recommendations for enforcing Federal civil-rights laws and taking other appropriate measures to encourage the private sector [federal contractors and other private employers] to end illegal discrimination and preferences, including DEI.”
Include a “plan of specific steps or measures to deter DEI programs or principles (whether specifically denominated ‘DEI’ or otherwise) that constitute illegal discrimination or preferences.” As a part of this plan, the DEI EO directed each Agency to identify up to nine large publicly traded corporations for DEI investigations.

Certification Provision

The DEI EO requires Agencies to include, in contracts and grant awards, language confirming that a contractor’s “compliance in all respects with all applicable Federal anti-discrimination laws,” is “material” to the contract. and requires each contractor to “certify that it does not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws.” The Certification Provision explicitly invokes the False Claims Act, a law which has the potential to cause significant liability for allegedly false claims to the federal government. Until the issues are decided in the current case, the District Court’s PI directs that the administration cannot:

Require any contractor or grantee to “make any certification…pursuant to the Certification Provision”; or
Bring any enforcement action pursuant to the DEI EO whether under the False Claims Act or other law.

What Does It Mean, For Now?

The DEI EO did not define “illegal DEI” beyond prohibiting unlawful “preferences” in employment decisions based on race and gender or other protected characteristics – which already is prohibited by Title VII of the Civil Rights Act of 1964. Thus, with the PI, the District Court appears to seek to temporarily restore the status quo that existed prior to the DEI EO. As a result, employers should continue to comply with Title VII, both with respect to their DEI programs and regarding their EEO compliance, generally.

For employers, decisions whether to pause, modify or continue unchanged with DEI efforts will continue to be difficult for several reasons, including that we may not have a final decision in this legal battle for the foreseeable future.

If Silberman Law can provide guidance to help your organization assess and make decisions regarding your DEI and EEO compliance efforts, simply reply to this Alert, or contact the Silberman Law legal professional with whom you work.

OFCCP Ordered to Stop All Investigative and Enforcement Actions Under Rescinded Executive Order 11246

Mon, 27 Jan 2025 22:27:43 GMT

OFCCP Ordered to Stop All Investigative & Enforcement Actions Under Rescinded Executive Order 11246

The Acting U.S. Secretary of Labor Vince Macone has directed OFCCP to halt all enforcement audits and investigations under Executive Order 11246, which was revoked last week by President Trump.

OFCCP will notify government contractors by Friday January 31, 2025 that the race and gender sections of open audits and investigations will be closed.

The elements of open audits and investigations related to military veterans and individuals with disabilities will be paused, pending further deliberation and forthcoming guidance.

What Happens Next?

This is a developing situation. Silberman Law will monitor the developments and will issue updates as more information becomes available.

For Silberman Law clients with open or pending OFCCP audits, we will follow up with you later today.

If you have questions or would like to discuss, please reply to this Alert or contact the Silberman Law legal professional with whom you work.

Ends Government Contractor Affirmative Action for Women and Race/Ethnic Minorities – Section 503 & VEVRAA Affirmative Action Remains

Wed, 22 Jan 2025 22:05:38 GMT

President Trump Rescinds Executive Order 11246

Ends Government Contractor Affirmative Action for Women & Race/Ethnic Minorities

Section 503 & VEVRAA Affirmative Action Remains

President Donald Trump has revoked Executive Order 11246 regarding affirmative action obligations of federal government contractors and subcontractors to promote employment of women and race/ethnic minorities.

The New Executive Order & Fact Sheet

The new Executive Order – “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” – and an accompanying set of FAQs, broadly address diversity, equity and inclusion programs in the federal government, and DEI programs of federal contractors and private sector employers generally.

Section 503 of the Rehabilitation Act (regarding affirmative action for Individuals with Disabilities) and the Vietnam Era Veterans Readjustment Assistance Act (or VEVRAA, regarding affirmative action for military veterans) are not subject to this new Executive Order. And those obligations can only be modified or rescinded by Congress.

The new Executive Order states that federal contractors may continue to comply with OFCCP’s regulations regarding affirmative action for females and minorities for the next 90 days, if they choose.

The Executive Order has no impact on EEO-1, VETS-4212, and state pay and EEO reporting requirements.

What's Next?

This is a developing situation and there are unknowns yet to be clarified. We will obtain updated information as it becomes available, and we will issue a follow-up Employer Alert soon.

Silberman Law will host a client-only Zoom webinar tomorrow to discuss these developments , as well as options for strategies for clients to consider. We will send an invite later today.

Objection Deadline - Sunday, December 10, 2024

Wed, 30 Oct 2024 13:57:24 GMT

New FOIA Requests Seek from OFCCP Federal Contractors' 2021 and 2022

EEO-1 Reports

Objection Deadline - Sunday, December 10, 2024

Over the last several years, the U.S. Department of Labor (DOL) has battled in federal court with The Center for Investigative Reporting (CIR) over CIR’s Freedom of Information Act (FOIA) request for all federal contactor and first-tier subcontractor EEO-1 Reports for the years 2016 through 2020. That litigation is ongoing and is currently before the federal 9th Circuit Court of Appeals.

In a new development, two different organizations – the University of Utah and a non-profit activist organization named “As You Sow” – recently filed FOIA requests with OFCCP seeking federal contractors' 2021 and 2022 EEO-1 Reports. These FOIA requests are separate from the earlier FOIA request by CIR.

In OFCCP’s notice in the Federal Register earlier today regarding the new FOIA requests, the Agency states that it does not currently have access to the 2022 reports. Therefore, today’s notice is limited to 2021 EEO-1 Reports and the Agency provides guidance for contractors that want to object to the disclosure of those reports.

Action Item – Federal contractors and first-tier subcontractors have until December 10, 2024 to object to the release of their EEO-1 Reports.

Silberman Law encourages employers that previously objected to the release of their 2016 through 2020 EEO-1 Reports to consider objecting to the new FOIA requests because a failure to object may be considered a waiver of their previous objections.

For contractors planning to object, OFCCP “strongly encourages” them to use a website form developed by OFCCP to file their objections. The form may be accessed at the OFCCP website here . If filing an objection via the webform is “not feasible,” objectors may e-mail an objection to OFCCPSubmitterResponse@dol.gov or mail it to the contact person identified in the Federal Register Notice that will be published today.

Contractors planning to object should consider the pros and cons of using the OFCCP website form or, instead, filing an objection letter via email.

OFCCP will “independently evaluate” the merits of all objections and provide notice to contractors regarding the Agency's decision.

For those contractors that elect not to object, OFCCP will release their 2021 EEO-1 Reports.

For Silberman Law clients we helped to file objections to the earlier CIR FOIA request, we will follow up with you directly.

For questions or assistance drafting and filing objections in response to the new FOIA requests, please contact the Silberman Law attorney with whom you work.

www.silbermanlawpc.com

OFCCP Issues Corporate Scheduling Announcement List

Wed, 12 Jun 2024 13:06:28 GMT

CSAL Provides Advance Notice of Upcoming Compliance Audits

Today OFCCP issued a “CSAL” identifying 500 employer locations and/or Affirmative Action Plans (“AAPs”) slated for compliance audits by OFCCP in the coming months.

What is a CSAL? It’s a list of the federal contractor/subcontractor establishment AAPs and Functional Affirmative Action Plans (FAAPs), posted by OFCCP on the Agency’s website, on which the Agency soon will conduct audits.

If you are a Silberman Law client on the new CSAL list, and haven’t already heard from us, you will soon.

The CSAL’s advance notice provides the “gift of time.” Employers should use this time to carefully audit their AAP compliance efforts, pay equity posture, and the past year’s hiring, promotion and termination trends before the Scheduling Letter, which triggers the audit, arrives.

That advance notice is especially valuable given that OFCCP made audits tremendously more burdensome when it expanded the data, documents and information contractors are required to submit within the 30-day deadline of the Scheduling Letter.

The prime example of this expanded burden (and risk) is that employers must submit two snapshots of detailed pay data. So, if it is your January 1, 2024 AAP being audited, you will need to submit pay data as of January 1, 2024 and January 1, 2023. Of course, analyzing that data and addressing pay disparities in advance of submission is critical to avoid findings of pay discrimination by OFCCP.

Another example (of both burden and risk) is that employers must submit multiple AAPs (or a single aggregated AAP) if you have multiple establishments/buildings on a “campus-like setting” within a single city. Preparing one AAP for audit is one thing, preparing multiple AAP datasets within 30 days is quite another.

If you have questions or would like to discuss your audit preparation, simply contact the Silberman Law legal professional with whom you work.

www.silbermanlawpc.com

Minnesota to Require Pay Transparency in Job Solicitations

Wed, 12 Jun 2024 13:01:03 GMT

Employers Must Include Salary Range, Other Compensation & Benefits

Effective January1, 2025, Minnesota joins New York, California, Illinois, Colorado and other states requiring the inclusion of pay range and benefits information in job advertisements. Unlike Illinois and Colorado, Minnesota is not requiring notice/posting to employees about any internal job promotion opportunities.

While the new law is vague in some important areas (applicability to remote jobs, pipeline requisitions, what “other compensation” means), the available details, for now, include:

Salary Range, Benefits & Other Compensation:

Applies to:

Minnesota employers with 30 or more employees in Minnesota;
All job postings that are solicitations (external, internal, and by third parties) “intended to recruit job applicants for a specific available position…that includes qualifications for desired applicants;”
Requires employers to disclose in each job posting the “starting salary range” plus a “general description of all the benefits and other compensation” to be offered to a hired applicant;
"Salary Range" means a “good faith estimate” at the time of the posting of the minimum and maximum annual salary or hourly range of compensation to be offered a job applicant, or the “fixed pay rate” to be paid for the job. Salary ranges “may not be open ended";
The terms “benefits” and “other compensation” are not defined.

Educational Poster Requirement:

Covered employers will be required to post, and keep posted, a notice of employee rights in places where employee notices are customarily located within the workplace.

We Have a Few Questions:

Most notably, the new Minnesota law is silent on whether these pay transparency requirements apply to remote jobs that may be performed outside Minnesota. Colorado, for example, has struggled with this issue and Illinois has recently attempted to better define applicability.
Also significant, the new law does not specifically address pipeline or evergreen requisitions where the job posting may not be for a “specific available position” and the pay rate may not be known at the time of the posting.
Finally, are bonuses and one-off recognition awards included in “other compensation?”
It seems likely Minnesota will need to address these questions in implementation regulations.

Key Takeaway for Multi-State Employers – A rapidly growing number of states are enacting differing (and often contrasting) pay range transparency in job advertisement laws, as well as pay reporting laws. And, in the case of Washington state, we’ve seen two (and counting) million dollar plus settlements by employers who were sued for failure to comply with the state’s pay range transparency law. Thus, a proactive strategy is now imperative.

If you have questions or want to discuss options and strategies for compliance, simply reply to this email or contact the Silberman Law legal professional with whom you work.

www.silbermanlawpc.com

EEO-1 Reporting Deadline Announced for June 4, 2024

Wed, 28 Feb 2024 18:12:58 GMT

EEO-1 Reporting Deadline Announced for June 4, 2024

The EEOC has announced that this year, employer’s EEO-1 Reports will be due on Tuesday, June 4, 2024.

The EEO-1 Reporting Portal will open on April 30, 2024.

Who Must File?

Employers with at least 100 employees nation-wide are required to file an EEO-1 report. Federal government contractors or subcontractors with 50 employees or more nation-wide also are required to file.

Who is Included in the EEO-1 Report?

Employers will need to include all full-time and part-time employees on the company’s payroll during a single pay period in 2023. The pay period selected by the employer must be between October 1 and December 31, 2023. Many employers select the last payroll period of 2023, which allows the same dataset to be used for both EEO-1 and VETS-4212 reporting (due on September 30, 2024).

What is Included in the EEO-1 Report?

Employers must report on employees’:

Race/Ethnicity
Gender
In a recent development, employees can now be identified as non-binary in EEO-1 Reporting
EEO-1 Category

The EEOC has announced it will release an updated Instruction Booklet and Data File Upload Specifications by March 19, 2024.

EEO-1 Report filing often raises a number of issues – accurate EEO-1 categorization, reporting gender non-binary employees, race/ethnicity “unknowns”, etc. – and we are here to help. If you have any questions or want assistance completing your EEO-1 reports, simply reply to this email or contact the Silberman Law legal professional with whom you work.

For Silberman Law clients with whom we work to submit EEO-1 reports, we will reach out to you shortly to start the process.

www.silbermanlawpc.com

EEO-1 Report FOIA Litigation Update

Thu, 15 Feb 2024 11:48:47 GMT

EEO-1 Report FOIA Litigation Update

U.S. DOL Appeals and Seeks Stay of EEO-1 Report Release

The federal District Court for the Northern District of California ordered OFCCP to release, by February 20, 2024, the withheld Consolidated EEO-1 Reports of federal contractors for the years 2016 through 2020 that were the subject of a Freedom of Information Act (FOIA) request by the Center for Investigative Reporting.

Our firm has learned that the U.S. Department of Labor today has appealed the district court’s decision, and that it will soon seek a stay of the release of EEO-1 Reports during the appeal.

We expect the 9 ^th Circuit Court of Appeals will grant a stay of the release of the EEO-1 Reports pending the appeal.

Silberman Law will monitor the developments in this case and will provide an update as soon as possible.

www.silbermanlawpc.com

California Pay Data Reporting Due May 8, 2024

Fri, 02 Feb 2024 18:28:53 GMT

California Pay Data Reporting

Due May 8, 2024

California pay data reporting is upon us again. This year’s deadline, for both Payroll Employee and Labor Contractor Employee reports, is May 8th , 2024 .

California has added new reporting requirements this year, though they are relatively minor. We have outlined below the existing and new filing requirements for this year’s reporting.

Who Must File?

California requires employers with 100 or more employees, nation-wide, and with at least one employee in California, file a Payroll Employee Report annually. This includes any remote employees who are physically located in California or reside outside of California but report into a California establishment.

In addition, employers who were provided with 100 or more workers by an agency or other third party (labor contractor) in 2023, and at least 1 of those workers were in California, must also file a Labor Contractor Employee Report .

What is Reported

Both Payroll Employee and Labor Contractor Employee Reports, have the same requirements.

A single pay period be selected between October 1st and December 31st , 2023 to determine which employees are to be included in the report.
The report will group employees by:

a. Establishment

b. Pay band

c. EEO-1 category; and

d. Race/Ethnicity and sex.

W2 Box 5 earnings and total hours for 2023 are used to determine the mean and median hourly wages of each group.

a. Establishment

b. Pay band

c. EEO-1 category; and

d. Race/Ethnicity and sex.

New Requirements for 2024

While the reporting obligations have remained primarily unchanged, there have been a few updates to reporting requirements this year.

Both report templates and pay bands have been updated for 2024.
Remote Employees for both Payroll Employee and Labor Contractor Employee Reports a. New data fields have been added to the reporting template which will require employers to report how many employees work remotely at each establishment during the snapshot period.
Labor contractors are no longer able to file reports with “unknown” for race/ethnicity or gender.

To provide guidance to employers, the California Civil Rights Department (CRD) released updated report templates , User Guide and FAQs , and earlier this week opened the Reporting Portal .

If you have any questions about California Pay Data Reporting or would like assistance with this year’s filing, please contact the Silberman Law professional with whom you work with.

www.silbermanlawpc.com

Federal Contractors & Subcontractors Required Pay Range Transparency in Job Advertisements May Be Coming Soon

Thu, 01 Feb 2024 11:55:56 GMT

Federal Contractors & Subcontractors

Required Pay Range Transparency in Job Advertisements May Be Coming Soon

As you probably know, several states – including New York, California and Colorado – now require employers to disclose, in job advertisements, starting pay ranges and benefits information. In addition, over the past few years, many states have prohibited employers from asking for, or using, salary history to set starting pay for new employees.

A proposed federal rule published earlier this week would do the same for federal contractors and subcontractors. When advertising for any position that would “perform work on or in connection with” a federal contract or subcontract, the employer will be required to disclose:

The compensation the employer believes in good faith it will pay for the position, which may be a pay range;
A “general description of the benefits and other forms of compensation” available with the job; and,
Provide employment applicants with a prescribed notice of these rights.

In addition, federal contractors would be prohibited from:

Seeking or requiring disclosure of an applicant’s salary history; and
Relying on an applicant’s salary history when considering whether to advance the applicant in the hiring process, or to set starting pay.

No action is needed now – these are only proposed requirements – but we expect there is a high likelihood the requirements will be approved.

Comments regarding the proposed rule can be submitted by April 1, 2024.

We will keep you updated on any developments as they happen.

If your organization is interested in submitting a comment, or if you have questions about the proposed rule, please contact the Silberman Law legal professional with whom you work, or simply reply to this Employer Alert.

www.silbermanlawpc.com

U.S. District Court Concludes EEO-1 Reports are Not Confidential "Commercial" Information Subject to FOIA Protections - Court Orders Disclosure of Requested EEO-1 Reports by February 20, 2024 U.S. DOL

Tue, 30 Jan 2024 11:48:38 GMT

EEO-1 Report FOIA Litigation Update

U.S. District Court Concludes EEO-1 Reports are Not Confidential "Commercial" Information Subject to FOIA Protections - Court Orders Disclosure of Requested EEO-1 Reports by February 20, 2024. U.S. DOL Considering Whether to App eal Decision.

The District Court's Decision

In response to a Freedom of Information Act (FOIA) request by the Center for Investigative Reporting, OFCCP withheld the EEO-1 Reports of those federal contractors who timely objected to the release of their Reports. The federal District Court for the Northern District of California has now ordered OFCCP to release, by February 20, 2024, the withheld EEO-1 Reports.

The court concluded that such reports are not protected by FOIA or the Trade Secrets Act because they do not contain confidential commercial information or trade secrets. Thus, the court found there is no basis for OFCCP to withhold the reports in response to the FOIA request. .

The U.S. Department of Labor – the named defendant in the lawsuit seeking to compel release of the reports under FOIA – is currently considering whether to appeal the court’s decision and seek a stay of the court’s order pending an appeal. The deadline for that decision is also February 20, 2024.

Background of FOIA Requests

In November 2022, the Center for Investigative Reporting and its staff reporter, Will Evans , filed a request for the Consolidated (Type 2) EEO-1 Reports of federal contractors for the years 2016 through 2020.

In response to the FOIA request, OFCCP withheld the Reports, and launched a Portal via which federal contractors could object to the release of their Reports. Some federal contractors decided not to object to the FOIA request. Others filed objections, primarily pursuant to FOIA Exemption 4 covering confidential commercial information. Exemption 4 protects from disclosure commercial or financial information that is also confidential or privileged. Some objectors also argued that disclosure is prohibited by the Trade Secrets Act.

Given recent increased attention to EEO-1 Report data – in connection with DEI efforts, ESG disclosures, as well as a wide-ranging EEO-1 FOIA request received by OFCCP – it’s a good idea to periodically review the accuracy of your EEO-1 category assignments, and to be prepared to put the reports (including data trends) in context relative to your DEI efforts and ESG-related pronouncements.

OFCCP had previously released the EEO-1 Reports of federal contractors subject to the FOIA request who did not timely object to the release of their Reports.

Will DOL Appeal? Will Any Contractors Seek to Intervene?

We expect that the DOL will soon decide whether to appeal the District Court’s decision, or comply with its requirements

Some federal contractors may seek to intervene in the litigation and appeal the District Court’s decision, independent of the DOL.

Silberman Law will monitor the developments in this case and will provide an update as soon as possible.

www.silbermanlawpc.com

Employers Must Include Pay Range, Benefits & Promotional Opportunity Disclosures

Wed, 30 Aug 2023 18:40:10 GMT

Illinois Becomes Latest State to Require Pay Transparency in Job Advertisements

Employers Must Include Pay Range, Benefits & Promotional Opportunity Disclosures

Effective January 1, 2025, Illinois joins a growing number of states requiring inclusion of pay range and benefits information in job postings. Illinois also joins Colorado as the only other state (for now) requiring notice in certain circumstances to employees about “opportunities for promotion.”

While the new law is vague in some important areas (Illinois DOL will publish regulations that will hopefully clarify some of the “grey areas”), the available details, for now, include:

Pay Scale & Benefits in Job Postings

Applies to:

Illinois employers with 15 or more employees;
All job postings (external & internal) an employer elects to post - but postings are not required;
If there is no job posting, the employer must disclose the pay scale and benefits to applicants "prior to any offer or discussion of compensation and at the applicant's request";
"Pay Scale" means the wage or salary, or the wage or salary range, the employer reasonably expects to pay for the posted position;
Requires a general description of the benefits and other forms of non-base compensation reasonably expected to be paid for the position;
A hyperlink to the webpage including the pay scale and benefits information is acceptable.

Notice of Opportunities for Promotion

Appears to apply only to job openings that are posted externally;
Requires notice to all current employees of promotional opportunities no later than 14 calendar days after an employer advertises a job externally;
Notably, the new law does not define "opportunities for promotion" or specify the contents of the required notice. However, this notice requirement does not apply to positions "exempt from competitive selection".

Other Limitations:

Notably, both these new transparency requirements apply only to jobs that "will be":

Physically performed "at least in part" in Illinois, or
Physically performed outside Illinois where the employee "reports to a supervisor, office, or other work site in Illinois."
The "will be" language suggests that neither of these notice requirements applies where a remote job - posted as remote - might end up being performed in Illinois, but the employer does not require it and the job will not report into Illinois.

As differing state pay transparency laws proliferate, a proactive strategy, particularly for multi-state employers, becomes imperative. If you have questions or want to discuss options and best strategy for compliance, please reply to this email or reach out to the Silberman Law professional with whom you work.

silberman-law-pc

﻿﻿Immediate Action is Required to Comply with Executive Order 14398 "Addressing DEI Discrimination by Federal Contractors"

Immediate Action is Required to Comply with Executive Order 14398 "Addressing DEI Discrimination by Federal Contractors"

April 24th and July 24th are Key Dates

The Administration Plans a Wave of Investigations to Verify Compliance

President Trump’s New Anti-DEI Executive Order Creates New Contract Requirements, and Significant New Risks, for Federal Contractors & Sub-contractors

President Trump's New Anti-DEI Executive Order Creates New Contract Requirements, and

Significant New Risks, for

﻿ Federal Contractors & Sub-Contractors

March 18, 2026 Reporting Deadline Postponed, Pending Outcome of Litigation

Expanded IPEDS Reporting for Colleges & Universities PAUSED

March 18, 2026 Reporting Deadline Postponed, Pending Outcome of Litigation

Court of Appeals Rules EEO-1 Reports Subject to FOIA Requests

Based on Federal 9th Circuit Court Decision, OFCCP to Disclose Five Years of Government Contractors' EEO-1 Reports

OFCCP Announced It Will Release the Reports to

The Center for Investigative Reporting on

February 25, 2026

California Has Opened Its Pay Data Reporting Portal

California Has Opened Its Pay Data Reporting Portal

Reports Are Due May 13, 2026

2026 California Pay Data Reporting

2026 California Pay Data Reporting is

Coming . . . With New Reporting Requirements

Reports Due May 13, 2026

Greatly Expanded IPEDS Reporting for Colleges & Universities Approved by Trump Administration

2026 Massachusetts EEO-1 Reporting

Massachusetts EEO-1 Reporting Deadline February 2, 2026

New Executive Order on Artificial Intelligence

Government Increases Contract Thresholds for Affirmative Action Plan Obligations Under Section 503 and VEVRAA

Government Increases Contract Thresholds for Affirmative Action Plan Obligations Under Section 503 & VEVRAA

Covered Government Contractors Must Prepare Annual AAPs Under Section 503 & VEVRAA - Are You In Compliance

Update on the Government Shutdown & I-9

E-Verify System Has Re-Started and Is Operational

USCIS Has Provided Detailed Guidance to Address Backlog

Massachusetts Job Posting Pay Transparency Requirements Become Effective October 29, 2025

Massachusetts Job Posting Pay Transparency Requirements Become Effective October 29, 2025

Pay Ranges Must Be Included in Job Postings and Provided to Employees and Applicants

The Government Shutdown & I-9 Compliance

During the Ongoing Federal Government Shutdown, E-Verify is Down But I-9 Employment Verification Obligations

are Still in Effect

How Should Employers Comply?

What Has Happened Since the Shutdown?

E-Verify and I-9 Best Practices for Employers During the Shutdown I-9 Forms Must Be Completed as Usual

E-Verify Mismatches (Tentative Non-Confirmations)

For Federal Contractors – One More Recommendation

California AI Rules Go into Effect Today - What Employers Need to Know

And Now, the Substance

Pre-Employment Practices

Unlawful Medical or Psychological Inquiries

Criminal History

Third-Party Agent Liability

Encourages Employer Proactive Anti-Bias Testing

U.S. DOL Policy Advisor, Ashley Romanias, to be New OFCCP Director

OFCCP Director Catherine Eschbach Leaving for EEOC Attorney Role

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U.S. DOL Policy Advisor, Ashley Romanias, To Be New OFCCP Director

U.S. Department of Justice Launches “Civil Rights Fraud” Investigations Against Government Contractors

What's at Stake?

What Should Employers Do?

Expanded IPEDS Reporting May Create Significant Risk for Colleges & Universities

Expanded IPEDS Reporting May

Create Significant Risk for

Colleges & Universities

What Should Colleges & Universities Do Now?

This Guidance Offers Employers a 'Roadmap' to How the Administration Interprets Many Corporate DEI and EEO Practices, and Where Risk May Be Present

Still Wondering What "Illegal DEI" Means?

U.S. Department of Justice Issues Guidance with Useful Detail, Examples & Best Practices

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This Guidance Offers Employers a "Roadmap" to How the Administration Interprets Many Corporate DEI & EEO Practices, & Where Risk May Be Present

A Reminder that, Regarding AAPs for Veterans & Individuals with Disabilities, OFCCP is 'Open for Business'

OFCCP Updates Veteran Hiring Benchmark to 5.1%

A Reminder that, Regarding AAPs for Veterans & Individuals with Disabilities, OFCCP is 'Open for Business'

U.S. DOL/DOJ to Decide Whether to Appeal the Ruling

U.S. DOL/DOJ to Decide Whether to Appeal the Ruling

Contractors Need Not Do Anything Pending that Decision

OFCCP Invites Submissions from Federal Contractors Regarding Compliance with EO 14173

OFCCP Invites Federal Contractors to Submit Information Demonstrating Compliance with EO 14173 & Non-Discrimination Laws

You Have 20 Days to Complete a Review of, and Make Needed Changes to, Your Policies & Practices to Ensure Compliance - and OFCCP is Coming to Check

The 90 Day "Grace Period" for Winding Down Executive Order 11246 Affirmative Action Programs, and Related Policies, Will End Soon

You Have 20 Days to Complete a Review of, and Make Changes to, Your Policies & Practices to Ensure Compliance - and OFCCP is Coming to Check - Here's What to Do

Immediate Action is Required to Comply with Executive Order 14398 "Addressing DEI Discrimination by Federal Contractors"

Federal Contractors & Sub-Contractors

Has Plans to Review Prior Audit AAPs to Look for Evidence of Past Employment Discrimination

Objection Deadline - Sunday, December 10, 2024

EEO-1 Reports