Following President Trump’s Executive Order “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” on January 24, acting U.S. Department of Labor (DOL) Secretary Vincent Micone issued an agency Order instructing DOL employees to cease and desist “all investigative and enforcement activity” under Executive Order 11246 (Equal Employment Opportunity) as the Secretary said the DOL “no longer has any authority” under the rescinded order. The Secretary further stated that the order applies to “all DOL employees, including the OFCCP, OALJ, and ARB.”

Specifically, the order instructed all DOL employees to:

Cease and desist all investigative and enforcement activity under the rescinded Executive Order 11246 and the regulations promulgated under it. This includes all pending cases, conciliation agreements, investigations, complaints, and any other enforcement-related or investigative activity.

And to:

Notify all regulated parties with impacted open reviews or investigations by January 31, 2025, that the EO 11246 component of the review or investigation has been closed and the Section 503 and VEVRAA components of the review or investigation are being held in abeyance pending further guidance.

The Secretary’s Order follows an official statement issued on January 23 by the Office of Federal Compliance Programs (OFCCP) reiterating President Trump’s revocation of EO 11246 and adding that Federal contractors may continue to comply with the regulatory scheme in effect on January 20, 2025 for 90 days from the date of Trump’s Order. OFCCP also emphasized that that a federal contractor’s obligations under Section 503 of the Rehabilitation Act, 29 U.S.C. 793 (Individuals with a Disability), and the Vietnam Era Veterans’ Readjustment Assistance Act, or VEVRAA (Veterans), 38 U.S.C. 4212, which are separate statutes, “remain in effect,” noting that both laws are “enforced by OFCCP.”

While contractors’ affirmative action obligations related to women and minorities are no longer required, the Secretary’s Order indicates that compliance reviews under Section 503 and VEVRAA (Protected Veterans) are on hold until further notice. Acting Secretary Micone appears to be examining the application of President Trump’s Order with respect to VEVRAA and Section 503. While any interpretation of EO 11246 that broadly expands the Order to VEVRAA and Section 503 almost certainly is an overreach, the use of OFCCP’s authority to investigate and enforce a contractor’s obligations under each law is within the Secretary’s purview. This suggests – but remains to be confirmed – that OFCCP will not require contractors to continue with an open VEVRAA or Section 503 compliance review or check. We think this does not mean a contractor’s obligation to comply with VEVRAA and Section 503 is no longer required, or that OFCCP will necessarily be prohibited from enforcing these and other anti-discrimination laws (more is likely to come). As noted in the General Services Administration’s (“GSA”) January 22 memorandum, Federal contractors must still comply with all nondiscrimination requirements under existing federal laws, which includes VEVRAA, the Rehabilitation Act, Title VII of the Civil Rights Act, the ADEA, the ADA and others.

Questions remain about how OFCCP will manage contractor’s employee data it has collected to date (including affirmative action analyses and EEO-1 data) as well as what effect the Secretary’s ‘cease and desist’ order will have on OFCCP’s response to cases involving EEO-1 freedom of information requests, for example, by the Center for Investigative Reporting (see related court orders in this case here). While we can safely say EO 11246 is no longer in effect, it may be best to wait for additional guidance from the DOL before drawing any final conclusions regarding the procedural and practical implementation of the Order’s revocation as well as further action by the GSA, Department of Defense (DoD) and/or NASA to issue directives and ultimately modify the Federal Acquisition Regulation (FAR) labor standards under FAR Subpart 22.8. GSA has already indicated in its memorandum that “it intends to take immediate action to begin forbearing enforcement of all contract clauses, provisions, terms, and conditions, related to ‘diversity, equity, and inclusion (DEI)”.