Businesses are constantly challenged by the ever-evolving landscape of labor and employment law, with new legislation and judicial developments occurring almost daily fueling a seemingly never-ending stream of litigation. For companies operating in multiple states, complying with this patchwork of federal, state, and local laws and developments can be daunting. Knowing these issues are a top concern for management and in-house counsel, Morrison Foerster keeps pace with this rapidly evolving landscape. MoFo ELC equips our clients with the most up-to-date and relevant information on employment and labor law issues covering key judicial, litigation and legislative developments, their implications for employers, and strategies to ensure compliance and avoid lawsuits.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Co-Chair, Global Employment and Labor Practice

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Andrew Turnbull represents companies on a broad range of labor and employment litigation and counseling matters. He has successfully defended clients in complex employment litigation before federal and state courts and administrative agencies. A primary focus of his practice involves helping companies navigate the unique employment issues that arise when doing business with the federal government, including advising on all aspects of OFCCP compliance, creating and implementing affirmative action plans, defending OFCCP audits and onsite investigations, conducting mock pay equity audits, drafting and developing business ethics policies and programs, and complying with the Service Contract Act, E-Verify, and the Drug Free Workplace Act.

Andrew Turnbull

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MoFo ELC equips our clients with the most up-to-date and relevant information on employment and labor law issues, covering key judicial, litigation, and legislative developments, their implications for employers, and strategies to ensure compliance and avoid lawsuits. To learn more about our capabilities, please visit the <a href="https://www.mofo.com/capabilities/employment-labor" target="_blank">Employment + Labor</a> practice page and read about our <a href="https://www.mofo.com/people?practices=Employment%20%2B%20Labor" target="_blank">Team</a>.

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The “Preventative Duty”: New Law Places Active Duty on Employers in the UK to Prevent Sexual Harassment in the Workplace

Good News for Employers: Texas Court Blocks FTC’s Non-Compete Ban

Potential Exceptions Under FTC’s Non-Compete Ban

FTC Issues Final Rule Banning Non-Competes

Maryland Poised to Continue Trend of Jurisdictions Mandating Pay Transparency in Job Postings

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On January 29, 2024, the Biden administration issued a <a href="https://www.federalregister.gov/documents/2024/01/30/2024-01343/office-of-federal-procurement-policy-federal-acquisition-regulation-pay-equity-and-transparency-in">Proposed Rule</a> that would prohibit federal contractors from seeking and considering compensation history when making employment decisions and require contractors to disclose compensation being offered in job postings. If implemented, the requirements will apply broadly to all federal contracts and subcontracts that are principally performed in the United States and cover all jobs that work on or in connection with a covered contract. Covered applicants and employees can submit complaints of alleged violations to the applicable contracting agency to “take action as appropriate,” and those agencies must forward to the Office of Federal Contract Compliance Programs (OFCCP) any such complaints that also allege discrimination.Released in recognition of the 15th anniversary of the Lilly Ledbetter Fair Pay Act, the Proposed Rule further implements the policies that the Biden administration announced in its March 15, 2022, Executive Order 14069 to advance pay equity and transparency in federal contracting. It also follows the trend of states passing pay equity and transparency laws requiring businesses to post pay information in job postings and prohibiting use of salary history information. Contractors should consider reviewing their pay equity and transparency practices now in light of the Proposed Rule so they can be prepared to comply should the rule become final.  Read the full <a href="https://www.mofo.com/resources/insights/240131-proposed-rule-seeks-to-mandate-pay-transparency" target="_blank">client alert</a>.

Andrew co-chairs the firm’s Global Employment and Labor Group. He represents companies on a broad range of labor and employment litigation and counseling matters, successfully defending clients in number complex matters before federal and state courts and administrative agencies.

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Keniece Gray is an associate in the Litigation Department of Morrison Foerster’s Washington, D.C. office.

Keniece Y. Gray

Keniece Gray

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New Guidance on COVID-19 Protocols for Contractor Employees at Federal Facilities

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On January 29, 2024, the Biden administration issued a Proposed Rule that would prohibit federal contractors from seeking and considering compensation history when making employment decisions and require contractors to disclose compensation being offered in job postings.

Proposed Rule Seeks to Mandate Pay Transparency and Ban Using Salary History for Federal Contractors

On August 25, 2023, OFCCP announced that it received approval from the Office of Management and Budget (OMB) for its new Scheduling Letter and Itemized Listing, significantly expanding the information and data federal contractors must submit to OFCCP at the outset of audits. These changes underscore OFCCP’s new aggressive approach to audits and provide OFCCP a greater opportunity to identify issues for investigation during audits.Read the <a href="https://www.mofo.com/resources/insights/230827-ofccp-new-audit-scheduling-letter" target="_self">full client alert</a>.

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OFCCP Signals Return to More Aggressive and Less Transparent Audits

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On August 25, 2023, OFCCP announced that it received approval from the Office of Management and Budget (OMB) for its new Scheduling Letter and Itemized Listing, significantly expanding the information and data federal contractors must submit to OFCCP at the outset of audits.

OFCCP’s New Burdensome Audit Scheduling Letter Approved

On January 20, 2023, the Office of Federal Contract Compliance Programs (OFCCP) published a list of 500 contractor establishments scheduled to receive advance audit notices known as Corporate Scheduling Announcement Letters (CSALs). CSALs are courtesy letters that OFCCP sends to federal contractors and subcontractors to alert them that one or more of their establishments will likely be scheduled for an OFCCP audit in the coming months. Contractors receiving CSALs are typically scheduled for audits, so they provide a good opportunity for contractors on the CSAL list to check their practices to make sure they are prepared for an audit.  Read our <a href="https://www.mofo.com/resources/insights/230123-ofccp-releases-new-audit-list-for-2023" target="_self">client alert</a>.

OFCCP Releases New Audit List for 2023

OFCCP Releases New Audit List for 2023

On January 20, 2023, the Office of Federal Contract Compliance Programs (OFCCP) published a list of 500 contractor establishments scheduled to receive advance audit notices known as Corporate Scheduling 

On September 15, 2022, OFCCP <a href="https://www.dol.gov/agencies/ofccp/submitter-notice-response-portal" target="_blank">announced</a> that it is extending the September 19, 2022 deadline for contractors to object to Type 2 EEO-1 Reports in response to the Freedom of Information Act (FOIA) request by the Center for Investigative Reporting (CIR). OFCCP extended the deadline to October 19, 2022 to allow contractors more time “to verify whether they are included in the universe” of 2016 to 2020 Type 2 EEO-1 Reports requested by CIR. OFCCP also said that it will contact contractors it believes are covered by the FOIA request, using contractors’ email addresses from the OFCCP Contractor Portal and EEO-1 Reports.BackgroundIn 2019, Will Evans, an investigative reporter at CIR, sent OFCCP a FOIA request for EEO-1 Reports of federal contractors and first-tier subcontractors. The FOIA request was later amended in June 2022 to request disclosure of Type 2 EEO-1 Reports for reporting years 2016 through 2020 indicating that the submitter was a federal contractor. The EEO-1 Reports in question are one of several types of reports filed by multijurisdictional establishment employers and include aggregated demographic data for company employees by race/ethnicity, sex, and EEO-1 job category for the company headquarters and other company establishments. EEO-1 Reports filed by single-establishment contractors (Type 1) and other EEO-1 Reports filed by multi-establishment contractors (Types 3, 4, 6, and 8) are not covered by CIR’s FOIA request. EEO-1 Reports containing compensation information (i.e., “Component 2” EEO-1 reports) are also not covered by the request. Type 2 EEO-1 Reports also only apply to multijurisdictional establishments and not to contractors with only one establishment. OFCCP’s Notice and Online PortalOn August 19, 2022, OFCCP published a <a href="https://www.federalregister.gov/documents/2022/08/19/2022-17882/notice-of-request-under-the-freedom-of-information-act-for-federal-contractors-type-2-consolidated" target="_blank">Notice</a> in the Federal Register (the “Notice”), informing contractors of CIR’s renewed FOIA request for EEO-1 Reports and providing detailed instructions on how to object. OFCCP stated that it “believes the information requested may be protected from disclosure under FOIA Exemption 4,” but it will not make final determinations until it evaluates written objections submitted by contractors. OFCCP will release EEO-1 Reports sought by CIR’s FOIA request for any contractors who do not submit timely written objections.OFCCP plans to assess timely submitted objections to determine whether the contractor’s EEO-1 Reports “should be withheld pursuant to FOIA Exemption 4.” OFCCP advised contractors to provide “as much information as possible addressing why they believe their Type 2 EEO-1 Report data should not be released under FOIA, including whether the information is commercial/financial and confidential.” OFCCP states that written objections “at a minimum” should address the following questions:<ul><li>Do you consider information from your EEO-1 Report to be a trade secret or commercial information? If yes, please explain why.</li><li>Do you customarily keep the requested information private or closely held? If yes, please explain what steps have been taken to protect data contained in your reports, and to whom it has been disclosed.</li><li>Do you contend that the government provided an express or implied assurance of confidentiality? If yes, please explain. If no, skip to the next question.</li><li>If you answered “no” to the previous question, were there expressed or implied indications at the time the information was submitted that the government would publicly disclose the information? If yes, please explain.</li><li>Do you believe that disclosure of this information could cause harm to an interest protected by Exemption 4 (such as by causing genuine harm to your economic or business interests)? If yes, please explain.</li></ul>In preparation for the anticipated large influx of objections, OFCCP created a <a href="https://www.dol.gov/agencies/ofccp/submitter-notice-response-portal" target="_blank">Submitter Notice Response Portal</a> for contractors to submit their objections and provided <a href="https://www.dol.gov/agencies/ofccp/faqs/submitter-notice-response#g10" target="_blank">FAQs</a>.  Contractors can opt to file objections via mail or email on or before the October 19 deadline. OFCCP also provided the following option for contractors to ask OFCCP FOIA Help Desk questions related to the Notice or FOIA request by email to OFCCP at <a href="mailto:OFCCP-FOIA-EEO1-Questions@dol.gov" target="_self">OFCCP-FOIA-EEO1-Questions@dol.gov</a>.Next StepsContractors who have not already filed objections now have more time to consider whether to object to CIR’s request. There are various issues for contractors to consider concerning whether to object and how best to position their written objections if they decide to object. Contractors should work with experienced legal counsel to consider the right path for their company and how to position their written objections if they opt to object.Contractors who are unsure about whether they are covered by the FOIA request should review their internal EEO-1 filing records to confirm whether they filed EEO-1 Reports during the relevant time period—2016 through 2020.  Past EEO-1 Reports are also available in the <a href="https://www.eeocdata.org/eeo1/signin" target="_blank">EEO-1 Online Filing System</a>.

OFCCP Extends Deadline to Object to FOIA Request for EEO-1 Reports

OFCCP Extends Deadline to Object to FOIA Request for EEO-1 Reports

On September 15, 2022, OFCCP announced that it is extending the September 19, 2022 deadline for contractors to object to Type 2 EEO-1 Reports in response to the Freedom of Information Act (FOIA) request by the Center for Investigative Reporting (CIR). 

On August 18, 2022, OFCCP issued a revised Directive 2022-01 (the “Revised Directive”) clarifying that contractors will not be required to provide any privileged pay analysis conducted for purposes of compliance with 41 C.F.R. § 60-2.17(b)(3). Although OFCCP’s clarification is welcome news for contractors, the Revised Directive states that contractors will still need to be able to prove the analysis was done under privilege to withhold it from OFCCP and, if withheld on privilege grounds, OFCCP will require contractors to provide various types of additional documentation and information to confirm they conducted a 2.17(b)(3) analysis. Read our <a href="https://www.mofo.com/resources/insights/220825-ofccps-revised-directive-softens?utm_medium=social&utm_source=LinkedIn-Gaggle">client alert</a>.

OFCCP’s Revised Directive Softens on Seeking Privileged Pay Analysis

On August 18, 2022, OFCCP issued a revised Directive 2022-01 (the “Revised Directive”) clarifying that contractors will not be required to provide any privileged pay analysis conducted for purposes of compliance with 41 C.F.R. § 60-2.17(b)(3)

OFCCP’s Revised Directive Softens on Seeking Privileged Pay Analysis

With a record breaking 4.5 million Americans quitting their jobs in March 2022, the Great Resignation has created a tension between meeting the increased business demand for talent, and compliance with the growing patchwork of pay equity and transparency laws. Numerous states and localities have passed, or are considering passing, laws requiring companies to disclose their pay ranges to applicants and employees and submit data to government agencies on their pay equity practices. This trend follows after many states amended their laws in the last few years to make it easier to pursue class and individual pay discrimination claims. Governmental enforcement agencies, such as OFCCP and EEOC, are also continuing to make pay discrimination a key enforcement priority. In the war for talent, some employers are being forced to let their pay equity compliance take a back seat to the increasing need to attract and retain employees. Join us as we explore these compliance challenges and discuss practical solutions for navigating them in the current competitive labor market. Topics to be discussed include:<ul><li>The impacts of the Great Resignation on pay equity practices;</li><li>The trend of pay equity, transparency, and reporting laws, including laws in California, Colorado, Illinois, New York City, Massachusetts, Washington, and more;</li><li>Trends in enforcement of pay discrimination claims at EEOC, OFCCP, and state agencies; and</li><li>Practical steps for navigating compliance and employee relations issues arising from these trends during a hot job market.</li></ul><div><a target="_blank" href="https://www.veracast.com/webcasts/mofo/mcle-programs/b17D2K.cfm">On-Demand Replay</a></div>

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Eric has experience defending class action, labor and employment, and intellectual property matters, including developing procedural strategies for clients preparing for trial, as well as examining in

Eric Gebert

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Navigating Pay Equity and Transparency Compliance During the Great Resignation

What You Need to Know About Restructuring and the Energy Crisis

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With a record breaking 4.5 million Americans quitting their jobs in March 2022, the Great Resignation has created a tension between meeting the increased busine

Navigating Pay Equity and Transparency Compliance During the Great Resignation

In the last three weeks alone, OFCCP has issued two significant Directives and a notice of proposed rulemaking, signaling its intent to be far more aggressive and less transparent in compliance evaluations than under the Trump Administration.  These developments include:<ul><li>Issuing, on March 15, 2022, Directive 2022-01, providing OFCCP’s view that its regulations require contractors to perform quantitative analyses of their compensation practices each affirmative action plan (AAP) cycle and that those analyses cannot be withheld from OFCCP during audits, even if performed under attorney-client privilege;</li></ul><ul><li>Publishing, on March 21, 2022, a <a href="https://public-inspection.federalregister.gov/2022-05696.pdf">Notice of Proposed Rulemaking (NPRM)</a>, seeking to rescind important evidentiary and procedural requirements for contractors before OFCCP issues Pre-determination Notices (PDNs) or Notice of Violations (NOVs) that were adopted by the previous OFCCP Director Craig Leen in November 2020;</li></ul><ul><li>Releasing, on March 31, 2022, <a href="https://www.dol.gov/agencies/ofccp/directives/2022-02">Directive 2022-02</a>, rescinding Directives from the Trump Administration aimed at providing contractors more transparency, consistency, and clarity in compliance evaluations and indicating OFCCP’s intent to conduct more thorough audits with seemingly less transparency and cooperation.</li></ul>Read our <a href="https://www.mofo.com/resources/insights/220405-ofccp-more-aggressive-less-transparent-audits.html">client alert.</a>

OFCCP Signals Return to More Aggressive and Less Transparent Audits

In the last three weeks alone, OFCCP has issued two significant Directives and a notice of proposed rulemaking, signaling its intent to be far more aggressive a

On December 2, 2021, OFCCP announced that it was launching its Affirmative Action Program Verification Initiative (the AAP VI), requiring all federal supply and service contractors and subcontractors to certify annually whether they have developed and maintained an affirmative action program (AAP) for each of their establishments or functional units.  OFCCP has created a new “<a href="https://www.dol.gov/agencies/ofccp/contractorportal?utm_medium=email&utm_source=govdelivery">Contractor Portal</a>” for contractors to make those certifications and for contractors to submit their AAPs to OFCCP during compliance evaluations. Before now, federal contractors and subcontractors have not been required to certify to OFCCP that they have developed and maintained AAPs.  Although prime contractors have to certify whether they have developed AAPs in the System for Award Management, historically, OFCCP has had no process for ensuring that contractors and subcontractors have developed and maintained AAPs for each of their covered establishments.  As we <a href="https://govcon.mofo.com/labor-employment/ofccp-seeks-comments-on-annual-aap-certification-proposal/">previously reported</a>, in September 2020, OFCCP sought comments on launching the AAP VI.  Since then, OFCCP <a href="https://omb.report/icr/202012-1250-001/doc/107316800">sought</a> and received approval from the Office of Management and Budget for the AAP VI, including a <a href="https://f.hubspotusercontent10.net/hubfs/4352717/AAVI_User_Guide_for_Contractors.pdf">User Guide</a> and an <a href="https://f.hubspotusercontent10.net/hubfs/4352717/OFCCP%20AAVI%20Admin%20Guide%202.04.2021.4PM.pdf">Administrator Guide</a>. With the implementation of the AAP VI, OFCCP believes it will now have the information to ensure “that all covered contractors are meeting their obligation to develop and maintain written AAPs.”  Under the new AAP VI, supply and service contractors who meet the thresholds for having to create AAPs must certify in the Contractor Portal by June 30, 2022, that they have developed AAPs for each establishment (or functional unit, if the contractor has an OFCCP‑approved functional affirmative action plan). Contractors will have a few months before they can register and start certifying compliance.  The key dates are as follows:<ul><li>On February 1, 2022, OFCCP will allow contractors to begin registering for access to the Contractor Portal.  If OFCCP has contact information for a contractor, it will send an email inviting the contractor to register for the Contractor Portal.</li><li>On March 31, 2022, contractors can start to certify that they have developed and maintained AAPs.</li><li>By June 30, 2022, contractors must complete their certifications.</li></ul>OFCCP has also provided <a href="https://www.dol.gov/agencies/ofccp/faqs/contractorportal">FAQs</a> regarding the Contractor Portal.  Some notable points from those FAQs include the following:<ul><li>Contractors that are only construction contractors and not also supply and service contractors are not required to certify compliance, and they should not register for the portal.</li></ul><ul><li>New contractors have 120 days to develop their AAP(s), and they must register and certify compliance in the Contractor Portal within 90 days of developing their AAP(s).</li></ul>Although OFCCP confirms that certifications will not exempt contractors from OFCCP compliance evaluations, failure to submit a certification or certifying that the contractor has not developed or maintained an AAP could lead to contractors being selected for a compliance evaluation or other enforcement actions.  According to Bloomberg Law, an OFCCP official stated that:OFCCP will be able to use contractors’ annual certification response as an additional criterion for the agency’s neutral scheduling process, so that contractors who certify they are not in compliance will be more likely to be scheduled for a full compliance review.OFCCP states that it will provide more information about the AAP VI in the coming months, including “how-to videos” and a “User Guide.”  For now, there remain a number of unanswered questions, including what AAP plan years contractors will need to certify, how OFCCP will use the certification process for scheduling of compliance evaluations or enforcement actions, and whether OFCCP will require contractors to provide any additional details about their AAPs beyond certifying that they have created and developed them.

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Ready, Set, Certify: OFCCP Releases Mandatory Annual AAP Certifications

Ready, Set, Certify:  OFCCP Releases Mandatory Annual AAP Certifications

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On December 2, 2021, OFCCP announced that it was launching its Affirmative Action Program Verification Initiative (the AAP VI), requiring all federal supply and

Please join us on October 14, 2021, as we discuss the latest developments on Biden's Executive Order 14042 in our upcoming webinar, "Untangling the Vaccine Mandate: Practical Steps for Contractors to Navigate Executive Order 14042," from 1:00 p.m. - 2:30 p.m. EDT. On September 24, 2021, the Safer Federal Workforce Task Force issued guidance on President Biden’s Executive Order 14042 (the “Order”), seeking to impose upon a broad swath of federal contractors and their employees various mandatory vaccine and related COVID-19 safety requirements. Contractors are now scrambling to deal with the fallout from the guidance. With the FAR Council slated to issue the FAR Clause on October 8, 2021, contractors are waiting to see whether the FAR Council will provide further limits or clarity on coverage and the requirements of the Order.Please visit the <a href="https://www.mofo.com/resources/events/211013-untangling-vaccine-mandate.html">webinar page</a> for more information on how to register.Starting on October 18, 2021, MoFo's Government Contracts group will be hosting its annual 'MoForward' event. Join MoFo's Andrew Turnbull and Sydney Cooper for their session on labor developments for federal contractors on October 19, 2021 at 1:00 p.m. EDT. The session will include discussion on the Biden Administration's key Labor and Employment developments so far, expected changes at the OFCCP in light of new leadership, the growing pressure for contractors and others to address pay equity and board diversity in their workplaces, and the trend of states (and possibly the federal government) in taking action to limit or ban the use of non-competes. For more information on MoForward, please click <a href="https://www.mofo.com/resources/events/211018-moforward-need-to-know.html">here</a>.

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Webinar: Untangling the Vaccine Mandate: Practical Steps for Contractors to Navigate Executive Order 14042

Webinar: Untangling the Vaccine Mandate: Practical Steps for Contractors to Navigate Executive Order 14042

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Please join us on October 14, 2021, as we discuss the latest developments on Biden's Executive Order 14042 in our upcoming webinar, "Untangling the Vaccine Mand

On September 22, 2020, President Trump signed an Executive Order on Combatting Race and Sex Stereotyping (the “EO”), prohibiting federal contractors and certain federal grant recipients from holding diversity and EEO training for their workforce that includes “divisive concepts,” such as training employees that the U.S. or an individual is “inherently racist, sexist, or oppressive, whether consciously or unconsciously.”  The EO follows a September 4, 2020 White House memorandum criticizing federal agencies for having “divisive, un-American” training sessions on “white privilege” and “critical race theory” and demanding that they end racial sensitivity trainings.  The EO also comes at a time when many contractors have been increasing their diversity and anti-bias trainings in response to racial and social justice issues brought to the forefront over the last several months.While the precise parameters of the types of training prohibited by the EO are not clear, contractors should review their diversity and anti-bias training initiatives in light of these new requirements.  If implemented, the EO requirements will be included in federal prime contracts entered on or after November 21, 2020, and will require prime contractors to flow the requirements down their subcontractors and vendors.Read more on <a target="_blank" href="https://govcon.mofo.com/labor-employment/president-trump-issues-executive-order-banning-federal-contractors-from-race-and-sex-stereotyping-training/">MoFo's Government Contracts Insights Blog</a>.

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Locke Bell is a partner in the firm’s Government Contracts & Public Procurement practice.

Locke Bell

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President Trump Issues Executive Order Banning Federal Contractors from Race and Sex Stereotyping Training

In a Long-Anticipated Move, the Trump Administration Revokes Executive Order 13495, Giving Service Contractors More Flexibility when Hiring Predecessor Contractor Employees 

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On September 22, 2020, President Trump signed an Executive Order on Combatting Race and Sex Stereotyping (the “EO”), prohibiting federal contractors and certain

President Trump Issues Executive Order Banning Federal Contractors from Race and Sex Stereotyping Training