Uniform Guidelines Recordkeeping Requirements Up for Review

Federal contractors are aware of the Uniform Guidelines on Employee Selection Procedures (UGESP). En...



Posted by Matt Nusbaum on October 30 2024
Matt Nusbaum

Federal contractors are aware of the Uniform Guidelines on Employee Selection Procedures (UGESP). Enforced by the OFCCP, EEOC, and DOJ, it is the set of regulations that instruct employers on how to monitor employment selection decisions for potential adverse impact discrimination, validate employment selection processes—like employment tests—if they show adverse impact, and how validation can be achieved.

What contractors might not know is that the recordkeeping requirements found in the UGESP are subject to approval by the White House Office of Management and Budget (OMB), specifically the Office of Information and Regulatory Affairs. Approval is typically granted for three-year periods, after which they must either be approved again for another term, or become void.

The current three-year approval period for the UGESP recordkeeping requirements is ending soon, so the EEOC has published a notice in the Federal Register regarding its intention to request approval without change to current requirements.

This comes with a 60 day public comment period in which the EEOC will collect and consider comments on the matter submitted by anyone who is interested.

Normally, this is a fairly rote exercise as the UGESP has not changed much since its inception in 1978, and the recordkeeping requirements are well established.

But it is 2024, an era of heightened political division in which the Supreme Court has issued several recent decisions fueling an almost wholesale re-examining of administrative agency authority. In general, these re-examinations are happening in the context of lawsuits, but that is not the only way to challenge administrative action.

After considering comments received in the next 60 days, the EEOC will submit the matter to OMB and publish a supporting document detailing the comments received and the EEOC’s take on each one. All of the comments should also be published online at https://www.regulations.gov.

OMB should then publish another notice in the Federal Register opening a second comment period, typically lasting just 30 days. Comments directed to the EEOC should be policy-focused, while OMB comments are typically expected to be process-focused.

In the past, we would expect OMB to act relatively quickly and approve the request without much fanfare. But in today’s environment, either or both agencies could receive more, or more complicated comments that could slow down the process, especially if they raise issues that either agency sees as a vulnerability to their authority. In other words, the comments received could telegraph potential lawsuits waiting in the wings.

We are nerds, so we will be following the process closely and will bring you any significant developments.

In the meantime, if you want to file your own comments to the EEOC, they are due by Monday, December 30, 2024 and can be filed online here. Comments can also be mailed to Raymond Windmiller, Executive Officer, Executive Secretariat, Equal Employment Opportunity Commission, 131 M Street NE, Washington, DC 20507. There is no email option, but if you still have a working fax machine, the number is 202-663-4114.

Matt Nusbaum
Matt Nusbaum
Matt has more than nine years of experience as a practicing attorney counseling and representing employers on matters before the OFCCP and other federal, state, and local workplace regulatory and enforcement agencies.

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