outsolve insights

On September 11, 2025, the Fourth Circuit heard oral argument in one of the first cases to challenge the constitutionality of the two clauses in Executive Order 14173 that have been nicknamed “the certification provisions.”    

OutSolve collaborates with law firm Roffman Horvitz, PLC, who specializes in assisting government contractors and other employers with human resources compliance and employment data analytics. Their attorneys will be occasional contributors to the OutSolve blog.

The U.S. Senate’s Appropriations Committee has advanced for a full Senate vote an appropriations package that includes $105,997,600 in funds for the Office of Federal Contract Compliance Programs (OFCCP).   

The Secretary of Labor’s Order 08-2025 lifts the temporary pause (abeyance) on the Office of Federal Contract Compliance Programs’ (OFCCP) processing of Section 503 (Rehabilitation Act) and VEVRAA (Vietnam Era Veterans’ Readjustment Assistance Act) compliance reviews and complaint investigations. The revocation of Executive Order 11246 remains in effect, but obligations under Section 503 and VEVRAA continue. Below are clear action items and guidance for federal contractors in light of these changes.

On Friday, June 27, 2025, OFCCP Director Catherine Eschbach issued a letter to all federal contractors with a voluntary request for information. The letter starts off by detailing the Executive Order changes that have occurred since January 21, 2025, focusing on the issuance of EO 14173, Ending Illegal Discrimination and Restoring Merit-Based Opportunity, and the rescission of EO 11246 which mandated affirmative action requirements.  

1. No one knows when the Federal Acquisition Counsel will publish the coming two new certifications it is planning to require federal government contractors to make when submitting federal contract bids. Pending litigation in one court is momentarily delaying their implementation, as noted below. 
2. Quick Background: These certification requirements sprang up in President Trump’s January 20, 2025, Executive Order 14151   (Ending Radical and Wasteful Government DEI Programs and Preferencing) and January 21, 2025, Executive Order 14173 (Ending Illegal Discrimination and Restoring Merit-Based Opportunity). See my March 24, 2025, Previous blog HERE describing the two pre-contract certifications and their status at that time. 
   
   That blog reported a major Trump (interim) injunction a potentially quizzical 3-Judge panel of the Fourth Circuit Court of Appeals (Richmond) issued in his favor. The injunction greenlighted President Trump’s use of the two certifications pending a later full review of the competing claims of the parties on the merits. Significantly, however, the three Judges found, in support of their interim Order, that the President’s legal arguments enjoyed a high likelihood to prevail on the merits upon the later full review of the case. And, of course, it would be these same three Judges who would make that final decision on the merits. 
   
   So, things were looking up for the President to require federal contractors to certify that they had no unlawfully discriminatory policies or practices when they bid federal contracts.   
3. Since then, however, Judge Matthew Kennelly of the United States District Court for the Northern District of Illinois also weighed in on the certifications, among other things, in an unrelated lawsuit the Chicago Women in Trades (CWIT) brought to stop both of President Trump’s above-referenced Executive Orders. 

On March 27, 2025, Judge Kennelly issued a Temporary Restraining Order prohibiting USDOL from enforcing certain provisions of both Executive Orders 14151 and 14173, including the two federal contract bid certifications. The case is Chicago Women in Trades (CWIT) v. Trump, et al No. 1:2025-cv-02005 (N.D. Ill. 2025). 

OutSolve has invited John C. Fox, Esq. as a guest blogger providing legal insights on EEO and compliance issues. The views expressed in his posts are his and do not reflect the viewpoint of OutSolve or its employees. 

OutSolve has invited John C. Fox, Esq. as a guest blogger providing legal insights on EEO and compliance issues. The views expressed in his posts are his and do not reflect the viewpoint of OutSolve or its employees. 

The proposed budgets are out for the fiscal year 2026 and it isn’t looking good for the Office of Federal Contract Compliance Programs (OFCCP). The budget plans of the U.S. Department of Labor’s (DOL) aim to fully eliminate the OFCCP beginning October 1, 2025.  

On January 21, 2025, President Trump issued a new executive order titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” bringing significant changes to the affirmative action obligations of federal contractors and subcontractors. This directive shifts the focus from traditional affirmative action mandates to emphasizing anti-discrimination and merit-based practices. Its objective is to uphold federal civil rights laws through anti-discrimination enforcement.

Keith Sonderling, former Commissioner of the U.S. Equal Employment Opportunity Commission, was named by President-elect Donald Trump as his pick for deputy secretary of the U.S. Department of Labor on January 14. Sonderling will be second-in-command under the previously announced Lori Chavez-DeRemer.