[author: Fred Satterwhite]

While much of the country was busy enjoying an extended Independence Day weekend, the Biden administration released its Spring 2024 Regulatory Agenda on Friday, July 5th. The semi-annual agenda includes regulatory actions the administration plans to take soon. The Spring 2024 agenda includes two noteworthy updates from EEOC and OFCCP:

1. EEOC: Amendments to the Regulations at 29 CFR Part 1602 to Provide for a Pay Data Collection

As discussed earlier this year, EEOC continues to move toward reintroducing the EEO-1 “Component 2” pay data collection with plans for a proposed rulemaking. The anticipated publication date is January 2025. EEOC notes that it would seek public comment on this proposal when it is published.

2. OFCCP: Modernizing Affirmative Action and Nondiscrimination Obligations for Federal Contractors and Subcontractors

OFCCP carries over from previous agendas (starting in Fall 2021, through Fall 2023) its intention to propose changes to modernize compliance programs for federal supply and service contractors and subcontractors; this time, the anticipated publication date is May 2025. These proposed changes would include recordkeeping and affirmative action program obligations, incorporating both modifications considering Executive Order 13988 (“Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation”) and feedback gleaned from stakeholders during listening sessions conducted by OFCCP in June 2022. Although OFCCP has not yet made publicly available any further details, this proposal is expected to include substantial changes to the way supply and service contractors have been preparing their affirmative action plans since OFCCP revised its regulations in late 2000.

The anticipated arrival dates for these proposed rules are not surprising, given that the sitting administration historically has tried to avoid introducing new regulatory actions during a presidential election campaign season. The outcome of this year’s election ultimately will determine whether these proposals are published in early 2025—or, at all.

If the Democrats’ candidate wins in November, expect to see EEOC’s proposed rulemaking published around the time the inaugural celebrations conclude in January, with OFCCP’s proposal following before next summer (perhaps as the first major action of the next OFCCP director). If the Republicans’ candidate wins, expect to see neither of these proposals published as scheduled: EEOC’s pay data collection proposal could quietly disappear from future regulatory agendas, and OFCCP’s drafted changes to the regulations would be put on hold indefinitely so the incoming administration could have an opportunity to review, revise, and reschedule any changes they deem necessary.