Recent developments and announcements from the U.S. Department of Labor highlight the agency's increased focus on the construction industry. In November 2021, Congress passed the Infrastructure Investment and Jobs Act and committed to spend $1.2 trillion for modernizing highways, roads, bridges, railways, ports, airports, and transit systems. As that federal money flows into construction projects, scrutiny from federal agencies is likely to follow.
Federal construction contractors can expect to see increased enforcement to correct what the U.S. Equal Employment Opportunity Commission recently referred to as a “severe and pervasive discrimination in the construction sector, especially against women and people of color.”
The EEOC made these remarks in a May 2022 press release that followed a hearing titled “EEOC Shines Spotlight on Discrimination and Opportunities in Construction.” Then, at the start of 2023, the EEOC published its draft Strategic Enforcement Plan for fiscal years 2023-2027. That plan included a focus on eliminating barriers in recruitment and hiring. The plan specifically noted a “lack of diversity in certain industries and workplaces (such as construction . . . ).” The plan also notes that industries that benefit from substantial federal investment – which presumably would include construction contractors that receive funding through the Infrastructure Investment and Jobs Act – are of “particular concern.”
More recently, at an American Bar Association conference last month, EEOC Chair Charlotte Burrows emphasized the agency’s commitment to fighting harassment and discrimination in the construction industry, saying that the agency was “ramping up our focus” on the construction industry.
OFCCP Megaproject Program
The Office of Federal Contractor Compliance Programs recently launched its “Mega Construction Project (Megaproject) Program” aimed at federally funded construction projects worth $35 million or more. OFCCP explains that the program focuses the agency’s resources on construction projects that have the greatest potential to make a positive economic difference in a community. The program is intended to increase engagement between the agency and contractors and subcontractors, including helping to build robust application pools that include workers from underrepresented backgrounds.
The Megaproject program is designed to have a “front-end” approach to achieve greater contractor compliance with equal opportunity requirements and for increasing the representation of qualified workers from underrepresented groups in the construction trades. The program also establishes Equal Employment Opportunity Committees comprised of stakeholders from the contracting agency, prime contractor, subcontractors, unions, job centers, schools, and trade groups.
Contractors Should Be Prepared
Contractors and subcontractors are well-advised to be prepared. We should expect claims or audits by EEOC, OFCCP, and private parties to increase in both frequency and intensity. As we move forward, Contractors should consider and take the following steps to prepare and defend themselves:
- Carefully review your contract requirements;
- Review and update company handbook and equal employment opportunity policies;
- Review, confirm, and update the company’s affirmative action program, if the company is a federal contractor or subcontractor;
- Review recruitment pipelines and resourcing to ensure a diverse pool of applicants;
- Provide equal employment opportunity training for supervisors and managers;
- Provide respectful workplace training for all employees;
- Ensure that required posters and notices are displayed in conspicuous and accessible areas in workplaces;
- Consider and conduct a pay equity analysis;
- Assess the company’s complaint procedures in the event that an employee has a complaint about discrimination, harassment, or retaliation; and
- Consider an audit of the company’s employment practices conducted under the attorney-client privilege.