The term “Workforce and Community Agreement” includes a range of formal agreements between a project developer/owner, impacted community groups, and relevant labor unions. Workforce and Community Agreements are tools used in project development and/or execution to ensure that benefits promised to communities and workers are realized. This could be an agreement specifying a project’s commitments to the community; it could also be a collective-bargaining agreement specifying wages, benefits, health and safety standards, workforce education and training, and other terms of employment with a labor union; or it could include both community and workforce provisions. This term as used here is inclusive of Community Benefits Agreements, Community Workforce Agreements, Good Neighbor Agreements, Project Labor Agreements, Collective-Bargaining Agreements, and other similar contractual tools.

It is important to recognize that the enforcement mechanism varies depending on the provisions of the agreement. Project Labor Agreements, which may also include Community Workforce Agreements, are covered under the National Labor Relations Act and fall under the oversight of the National Labor Relations Board. Community Benefits Agreements and Good Neighbor Agreements are legally binding agreements that are negotiated directly between community coalitions and project developers.

DOE’s goal is to maximize success of BIL-funded projects, and therefore DOE encourages the expansive use of Workforce and Community Agreements because legal enforceability is a key tool for accountability. DOE will not be party to the Workforce and Community Agreements. However, DOE may incorporate a Workforce and Community Agreement into the award terms and pursue action if a recipient fails to comply with the terms of the Workforce and Community Agreement. 

See Project Labor Agreement Resource Guide | U.S. Department of Labor (dol.gov)

A “Community Benefits Agreement” is an agreement signed by community groups or coalitions and a project developer, identifying the community or labor benefits a developer agrees to deliver in return for community support or workforce availability for a project. Community coalitions can be comprised of stakeholder groups that would be impacted by a project, including neighborhood associations, faith-based organizations, environmental groups, and labor unions. Community Benefit Agreements help ensure that measurable local benefits will be given to a community. They are enforceable, legally binding contracts for all parties. They typically specify responsibilities, reporting, and remedies.

No, the Community Benefit Agreement is one possible outcome of meaningful community engagement that is part of the Community Benefits Plan. While the names are similar, the two are not synonymous. For more resources relating to Community Benefits Agreements, please reference DOE’s Community Benefits Agreements Toolkit web page.

A PLA is a pre-hire collective-bargaining agreement with one or more labor organizations that establishes the terms and conditions of employment for a specific construction project. PLAs are permissible pre-hire agreements under section 8 (f) of the National Labor Relations Act (29 U.S.C. 158(f)), which authorizes the use of these agreements between labor organizations and employers engaged primarily in the building and construction industry. These pre-hire agreements help secure the skilled and trained workforce required to complete a high-quality project on schedule. PLAs generally prevent labor disputes (and related delays) on projects by preventing strikes and lockouts. PLAs establish wage rates for workers on a project and typically include language related to worksite health and safety. PLAs can also encourage increased veteran participation, apprentice utilization, local hiring, and the employment of women and people from disadvantaged communities.

Outside of construction, pre-hire collective-bargaining agreements are not permitted under the National Labor Relations Act. However, under the National Labor Relations Act, employees in other industries covered by the Act can join and form unions and engage in collective bargaining if they so choose.

For more information, see 

• Project Labor Agreement Resource Guide | U.S. Department of Labor (dol.gov)
• Project Labor Agreements (everycrsreport.com)
• Building Better: A Look at Best Practices for the Design of Project Labor Agreements
• Efficiencies of Project Labor Agreements

A CWA is a PLA that includes community-oriented commitments relating to equitable workforce development, social justice, small business support and/or other issues. Negotiating a CWA brings building trades unions and the trades council together with the project user/owner, the general contractor, and community organizations to jointly develop the terms of the project. As with PLAs, CWAs generally help prevent delays, maintain workplace safety, and ensure high-quality construction products, all of which help protect taxpayer investment in the project.

Additionally, Access and Opportunity Committees can be established to help review progress toward meeting DEIA goals within PLAs and CWAs. These committees bring contractors, labor groups, and community groups together to meet regularly to review diversity numbers and engage in pragmatic problem solving. CWAs have proven effective tools to increase equity in the workplace. 

[1] Built-to-Last-Best-Practices-for-Diversity-in-the-Construction-Industry.pdf (massgaming.com)
[2] Finishing-the-Job-v.9.1-12.2.2021-1.pdf (policygroupontradeswomen.org)

DOE supports the negotiation of Workforce and Community Agreements because these agreements help settle disputes ahead of project deployment, strengthen civic participation, increase worker empowerment, secure the required workforce, and equitably align the resources and needs of local workers and communities with the benefits and opportunities of new projects. Robust Workforce and Community Agreements:

• Are negotiated between the project developer and an inclusive, representative, and accountable coalition of community and labor partners;
• Are legally enforceable with clear metrics, timelines, transparency, and reporting processes; and
• Assign roles and responsibilities to determine compliance and outline processes to address non-compliance.

A potential bidder may find it advantageous or highly beneficial to engage with labor unions when drafting their Community Benefits Plan. Most large projects will involve many different unions, as they all represent trades with different skill sets. There could also be several different unions with overlapping trade jurisdictions in a geographic area; be aware that contact with only one union for a certain trade may not be best practice.

For construction activity, reaching out to the national headquarters office of a construction union is an effective first step to connect with their local affiliates. Many states and counties have Building and Construction Trades Councils and their websites will list their affiliated unions. Please note that not all construction unions are affiliated with these councils.

For ongoing operations and production activity, reaching out to the national headquarters office of a relevant industrial union is an effective first step to connect with their local affiliates. Most states and counties have Central Labor Councils or State Labor Federations that are made up of their affiliated unions. Please note that not all industrial unions are affiliated with these organizations.

Strengthening prosperity by expanding good-paying, secure, and safe union jobs accessible to all workers is a key goal set by President Biden, discussed in depth in his Executive Orders on Ensuring the Future Is Made in All of America by All of America's Workers (EO 14005), Tackling the Climate Crisis at Home and Abroad (EO 14008), Worker Organizing and Empowerment (EO 14025), Boosting Quality of Federal Construction Contracts (EO 14063), Promoting Competition in the American Economy (EO 14036), and Implementing the Infrastructure Investment and Jobs Act (EO 14052). Advancing Effective, Accountable Policing and Criminal Justice Practices to Enhance Public Trust and Public Safety - Supporting Alternatives to Arrest and Incarceration and Enhancing Reentry (EO 14074 Sec. 15).

Investing in America’s workforce means shifting from seeing “labor as a cost” to “labor as an investment.” DOE’s funding opportunities seek to create domestic energy and supply chain jobs with good pay, benefits, predictable schedules and with assurances that workers will have a free and fair chance to join or form a union. Investing in workers includes hiring workers as employees rather than through temp agencies or as independent contractors. It also means fostering safe, healthy, and inclusive workplaces with equal opportunity, free from harassment and discrimination. In addition, investing in America’s workers involves making investments in training, education, and skill development and supporting the corresponding mobility of workers to advance in their careers. By supporting such employment practices, DOE seeks to ensure that the efficiency, ingenuity, and skill of the American workforce is the foundation of our nation’s competitive advantage in the global energy industry and related supply chains.  

A “good job” is a job with (1) fair, transparent, and equitable pay that exceeds the local average wage for an industry, while delivering; (2) basic benefits (e.g., paid leave, health insurance, retirement/savings plan); (3) providing workers with an environment in which to have a collective voice; and (4) helps the employee develop the skills and experiences necessary to advance along a career path. In addition, good jobs provide (5) predictable scheduling, and a safe, healthy, and accessible workplace devoid of hostility and harassment. With good jobs, (6) employees are properly classified with the limited use of independent contractors and temporary workers. Workers have a (7) statutorily protected right to a free and fair choice to join a union under the National Labor Relations Act (NLRA). Good jobs are provided by management’s rigorous knowledge of these rights and other employment rights that protect against harassment, discrimination, and retaliation and their active attempt to avoid any violations of the NLRA and other labor and employment laws; such as worker intimidation or harassment, or unwarranted delay in negotiations or grievance resolution. See also https://www.dol.gov/general/good-jobs/principles. 

[1] Economic Development Administration, ARPA Good Jobs Challenge NOFO, EDAHDQ-ARPGJ-2021-2006964, at n. 1, available at https://www.grants.gov/web/grants/viewopportunity.html?oppId=334720

For construction-related jobs, a Project Labor Agreement may provide sufficient detail on skill requirements and provide assurances of skilled worker availability. Unless already included in Project Labor Agreement, applicants should provide sufficient detail on the following:

1. How the recipient will ensure the project has ready access to a sufficient supply of appropriately skilled labor to ensure high-quality construction throughout the life of the project, including a description of any required professional certifications and/or training (in-house, apprenticeship, etc.)
2. How the recipient will minimize risks of labor disputes and disruptions that would jeopardize timeliness and cost-effectiveness of the project
3. How the recipient will provide a safe and healthy workplace that trains on the recognition, avoidance, abatement, and prevention of safety and health hazards in workplaces, and avoids delays and costs associated with workplace illnesses, injuries, and fatalities, including descriptions of safety training, certification, and/or licensure requirements for all relevant workers (e.g., OSHA 10, OSHA 30); 
4. How the project prioritizes local hires, or an explanation of unfeasibility
5. Records to substantiate the information in items 1-4 upon request

For ongoing operations/production jobs, a collective-bargaining agreement, labor-management partnership, or other such agreement which supports efforts to attract, train, and retain a skilled and well-qualified workforce may provide sufficient detail on assurances of skilled worker availability. In the absence of such an agreement, applicants should provide sufficient detail on the number of people they anticipate hiring and quality of jobs to be created, which may include:

1. Family-sustaining wages above the median for the region, with clear opportunities for wage progression alongside skill progression;
2. Employer-sponsored health insurance and pension/retirement coverage options;
3. Personal and family benefits, such as paid family and medical leave, parental leave, paid sick leave, other paid time off, and mental health support, etc.;
4. Caregiving supports like flexible schedules, telework, childcare facilitation, and back-up childcare;
5. Predictable scheduling; and
6. Correct classification of workers as permanent employees and notification of rights of employees to all workers (including those classified as independent contractors)

The following rights should not be reiterated in the Community Benefits Plan. These are the protected rights of workers, and the Community Benefits Plan commitments on job quality need to be additional to these rights. 

1. Money.  Workers have the right to be paid a fair wage.  Workers doing construction work on covered construction projects must be paid the Davis-Bacon “prevailing wage”, which varies depending on where the work is and the type of work they perform.  Contractors must post a Davis-Bacon Employee Rights poster and a copy of the correct wage determination at the job site in a prominent and easily accessible place where it can be easily seen.  Workers can review the “Employee Rights under the Davis-Bacon Act” poster and wage determination to ensure they are being paid at least the prevailing wage for the work they perform.  For additional assistance, please contact the Wage and Hour Division of the U.S. Department of Labor: 1-866-487-9243.
2. Safety.  Workers have the right to a safe and healthy workplace.  Employer must provide a workplace free of known health and safety hazards.   Workers with concerns about health and safety issues at their workplace, have the right to speak up about them and contact OSHA without fear of retaliation.  For additional assistance, please contact the Occupational Safety and Health Administration: 1-800-321-6742.
3. Voice.  Workers have the right to act with a co-worker (or co-workers) to address work related issues.  For example, workers can talk about their pay, join a group that refuses to work in unsafe conditions, and sign a petition asking for better hours.  Workers also have the right to form, join or assist a union.  They can organize a union to negotiate with their employer over their terms and conditions of employment.  For additional assistance please contact the National Labor Relations Board:  1-844-762-6572.
4. Fairness.  Workers have the right to equal treatment.  Employers cannot treat a worker badly or discriminate against them because of their race, color, religion, sex (including pregnancy), gender identity, sexual orientation, national origin, age (40 or older), disability, genetic information, citizenship or immigration status, or service member or veteran status.  For additional assistance please contact the Equal Employment Opportunity Commission: 1-800-669-6820, Immigrant Employee Rights Section of the Department of Justice: 1-800-255-7688, Veterans’ Employment and Training Service:  1-866-487-2365, or Office of Federal Contract Compliance Programs:  1-800-397-6251.
5. Status.  No matter a worker’s immigration or documentation status they have the right to pay, safety, voice, and fairness on construction jobs.  All workers on construction jobs have right to fair pay.  All employees on construction jobs have the right to safety.  All employees on construction jobs have the right to form, join or assist a union.  All employees on construction jobs have the right to equal treatment.
   Source: 5 Fast Facts in Construction | U.S. Department of Labor (dol.gov)
    

A safety and health program must have the three basic elements of management leadership, worker participation, and a systematic approach to finding and fixing hazards to be effective.  The main goal of safety and health programs is to prevent workplace injuries, illnesses, and deaths, as well as the suffering and financial hardship these events can cause for workers, their families, and employers. It is important to have a health and safety committee that includes representatives of the hourly workforce. This committee should mean regularly to discuss issues and remedies, and provide a forum for workers to raise concerns. Workers should receive health and safety training. 

Per the National Labor Relations Act, employees have the right to form, assist or join a union or engage with other employees to take action for their mutual aid or protection regarding terms and conditions of employment. In addition, it is declared to be the Federal Government’s policy to support worker organizing and collective bargaining.

Strong assurances that applicants are ensuring workers free and fair chance to join or form a union may include: 

1. Pledge to permit union recognition through card check (as opposed to requiring union elections)

2. Commit to providing union organizers access to appropriate non-work employer property and workers. 

3. Intention to enter into binding arbitration to settle first contracts

Employer investments in workforce education and training can take several forms, including:

1. Participation in labor-management training partnerships, including Registered Apprenticeships
2. Commitment to employer contributions to training programs and paid time for employees to participate in skills training
3. Promotion of worker voice in training programs
4. Provision of personalized, modularized, and flexible skill development opportunities, such as on-demand and self-directed virtual training
5. Provision of continuing education programs for employees to earn credentials and degrees relevant to their career pathways

A Registered Apprenticeship Program (RAP) is an industry-driven, high-quality career training model, as well as a job with an articulated wage progression. Apprenticeship programs provide on-the-job learning and related classroom instruction on the technical and academic aspects of the job. The training is rooted in industry skill standards and competencies. Apprenticeship programs help companies successfully recruit, develop, and retain a highly skilled workforce for the jobs they need filled. Programs are designed to reflect the communities in which they operate through strong non-discrimination, anti-harassment, and recruitment practices to ensure access, equity, and inclusion. Apprentices are afforded worker protections while receiving rigorous training to equip them with the skills they need to succeed and the proper training and supervision they need to be safe. Finally, RAPs are programs that meet the quality standards established by the U.S. Department of Labor and have been registered with the Department of Labor’s Office of Apprenticeship or a Department of Labor recognized State Apprenticeship Agency. When individuals successfully complete a RAP, they receive an industry-recognized, nationally portable credential.

Registered apprentices earn a paycheck as soon as they begin an apprenticeship, so they are earning while they build their skills and knowledge. Registered apprentices also earn progressively higher wages as their skills develop. The RAP training model works for a broad variety of industries and there are both union and non-union apprenticeship programs in over 1,000 occupations and growing. Programs vary in length and may be as short as one year or as long as six years.¹

[1] Registered Apprenticeship Program | Apprenticeship.gov

EO 13985, “Advancing Racial Equity and Support for Underserved Communities Through the Federal Government” and EO 11246, which requires that all federally assisted contractors make good faith efforts to meet goals that 6.9% of construction project hours be performed by women and a certain percentage of construction work hours, varying based on geography, be performed by people of color.¹

EO 14074 - Advancing Effective, Accountable Policing and Criminal Justice Practices to Enhance Public Trust and Public Safety and Flag Section 15: Supporting Alternatives to Arrest and Incarceration and Enhancing Reentry [“Advancing Effective, Accountable Policing and Criminal Justice Practices to Enhance Public Trust and Public Safety - Supporting Alternatives to Arrest and Incarceration and Enhancing Reentry (EO 14074 Sec. 15)”]

[1] https://www.dol.gov/sites/dolgov/files/ofccp/ParticipationGoals.pdf

Black, Latino, and Indigenous and Native American persons, Asian Americans and Pacific Islanders and other persons of color; members of religious minorities; lesbian, gay, bisexual, transgender, and queer (LGBTQ+) persons; women, immigrants, veterans, individuals with disabilities; individuals in rural communities; individuals without a college degree, individuals with or recovering from a substance abuse disorder, justice-involved individuals, and individuals otherwise adversely affected by persistent poverty or inequality. 

As part of a whole-of-government approach to advancing equity, DOE’s funding opportunities seek to encourage the participation of underserved communities and underrepresented groups, and ensure equitable access to business opportunities, good-paying jobs, career-track training, and other economic opportunities. Partnerships with community-based organizations, comprehensive support services to reduce barriers to access to opportunities, and business and employment opportunities for members of disadvantaged communities are key tools.

Minority Serving Institutions (MSIs) refer to universities and colleges that serve a significant percentage of students from minority groups, including Historically Black Colleges and Universities(HBCUs), Hispanic Serving Institutions, Tribal Colleges and Universities, and Other Minority Institutions as educational entities recognized by the Office of Civil Rights (OCR), U.S. Department of Education, and identified on the OCR's Department of Education accredited postsecondary minorities’ institution list.

For more information visit: https://www2.ed.gov/about/offices/list/ocr/edlite-minorityinst.html.

DOE seeks to encourage the participation of underserved communities and underrepresented groups across all projects. Applicants are highly encouraged to include individuals from groups historically underrepresented in Science, Technology, Engineering and Mathematics (STEM) on their project teams. Further, DOE encourages Minority Serving Institutions, Minority Business Enterprises, Minority-Owned Businesses, Woman-Owned Businesses, Veteran-Owned Businesses, and Tribal Colleges and Universities to apply as the prime applicant or participate on an application as a proposed partner to the prime applicants.

1. Identify Minority Business Enterprises, Minority-Owned Businesses, Woman-Owned Businesses, Native American-owned businesses, LGBT-owned business, and Veteran-Owned Businesses to solicit as vendors and sub-contractors for bids on supplies, services and equipment; 

2. Efforts to increase the representation of Minority Serving Institutions and as partners, as applicable; 

3. Collaborate with researchers, and staff in Minority Serving Institutions, as applicable; 

4. Anti-bias training and education to ensure hiring professionals can recognize unconscious bias and can learn how to reduce discriminatory barriers; 

5. Training for worksites on anti-harassment and other strategies (including third-party reporting procedures and robust anti-retaliation measures) to prevent and address hostility and harassment based on race, gender, ethnicity or other categories protected under law. 

6. Identify workforce training partners to foster improved access to jobs for members of the community, including under-represented individuals and those facing barriers to employment such as those with disabilities, returning citizens (i.e. formerly incarcerated), opportunity youth (i.e. foster youth), and veterans; 

7. Support for quality apprenticeship readiness and/or pre-apprenticeship programs that are integrated with registered apprenticeship;  

8. Comprehensive support services such as income supports, mental health supports, transportation assistance, access to childcare, and services aimed at helping to retain underrepresented groups like mentoring, support groups, and peer networking to reduce barriers to career-track training and jobs for underrepresented and disadvantaged workers; and 

9. Describe Local and/or Economic Hire efforts (e.g., preferences for economically-disadvantaged populations) describing expectations for hiring and retention.   

10. Regularly report demographic data on workforce as well as information demonstrating good faith efforts for recruiting and retaining workers from underserved communities. Data should be collected and reported frequently enough to permit course correction and deploying new strategies as needed to ensure that employment opportunities are available to historically underserved workers in the communities in which projects are contemplated. 

11. Partnering with registered programs that facilitate the reentry of formerly incarcerated individuals, sealing and expunging of criminal records, restoring the right to vote for eligible people, and assisting with access to government-issued identification.

[1] National-Strategy-on-Gender-Equity-and-Equality.pdf (whitehouse.gov), p. 12

The following are examples of elements that can increase participation of workers facing barriers to employment.  These elements can work together, or individually, to expand opportunities for women, economically disadvantaged, and local workers on your construction projects.

1. Identify, support, or launch workforce training programs, such as Apprenticeship Readiness Programs, to foster improved access to training and jobs for members of the community, including under-represented individuals and those facing barriers to employment such as those with disabilities, returning citizens (i.e. formerly incarcerated), opportunity youth (i.e. foster youth), women, and veterans
2.  Ensure Apprenticeship Readiness Programs are integrated with Registered Apprenticeship Programs
3. Partner with the local workforce system and community-based organizations for outreach and recruitment focused on women in construction and connecting women to Apprenticeship Readiness Programs and Registered Apprenticeship public recruitments
4. Provide comprehensive support services such as mental health support, transportation assistance, and access to childcare to reduce barriers to career-track training and jobs for underrepresented and disadvantaged workers in Apprenticeship Readiness Programs and Registered Apprenticeship Programs.
5. Executive Order 11246, as amended, includes geographic goals for minorities and 6.9% of participation comprised of women. Contractors may consider establishing higher goals for their projects. Contractors are required to make good faith efforts to meet these goals, but the goals are not quotas, and no sanctions are imposed for failure to meet them.
6. Establish, consistent with equal opportunity laws, voluntary commitments for DEIA on projects including goals for apprentice and journey level work hours for women, economically disadvantaged, and local workers
7. Include specific elements focused on women, economically disadvantaged, or local workers in a Project Labor Agreement/Community Workforce Agreement, including identifying Apprenticeship Readiness Programs focused on recruitment of populations facing barriers to employment; establishing training goals for Apprenticeship Readiness Programs; and establishing goals for apprentice and journey level work hours for women, economically disadvantaged, and/or local workers
8. Fund and launch preparatory classes to increase access to Apprenticeship Readiness Programs and Registered Apprenticeship Programs including classes focused on:
   • Helping students obtain High School diploma/HS equivalency
   • Math prep classes to help students enter Apprenticeship Readiness Programs and more intensive classes focused on entry exams for relevant Apprenticeship Programs

The US Department of Labor has developed a framework for Quality Pre-Apprenticeship Programs (also called apprenticeship readiness programs). This framework identifies the characteristics of quality pre-apprenticeship programs, as follows: 

• Direct partnership with Registered Apprenticeship program sponsors, allowing for quality pre-apprenticeship programs to be designed and delivered with input from RAP sponsors and provide a clearly articulated pathway for entry into Registered Apprenticeship programs upon successful completion of the pre-apprenticeship program.
• Collaboration with Registered Apprenticeship sponsors to promote apprenticeship to other employers as a preferred means to develop a skilled workforce and to create career opportunities and pathways for individuals.
• Meaningful training combined with hands-on experience replicating a workplace, while observing proper supervision and safety protocols, which does not displace incumbent paid employees and is approved by the Registered Apprenticeship sponsor with whom the pre-apprenticeship program is partnering.  
• Access to career and supportive service during the program throughout the pre-apprentice’s transition into a RAP and following that helps participants remain in the program (such as, but not limited to, child and dependent care, transportation assistance, mentoring, and counseling). 
• Strategies that increase access and entry to Registered Apprenticeship opportunities for underrepresented populations that will allow participants to successfully enter into and persist in RAPs. These involve: 
  • Thoughtful and targeted recruitment strategies focused on outreach to one or more populations underrepresented in local, state, and national RAPs; 
  • Educational and pre-vocational services, as well as design of instruction and training that reach underrepresented populations to assist them in overcoming barriers for entering and succeeding in RAPs; 
  • Activities introducing participants to Registered Apprenticeship programs and assistance in applying for those programs.

For additional information on pre-apprenticeship, please review USDOL’s Training and Employment Notice 13-12. 

Answer: Yes. Foremost, it is important to understand that diversity, inclusion, equity, and accessibility goals are not categorically prohibited under Title VI or any other federal civil rights law. However, it is crucial to know the legal framework under which these goals are examined to avoid legal challenges that can hinder the progress the Department of Energy and recipients of financial assistance from DOE are making towards these goals. 

Notwithstanding the goals that may inspire a DEI Plan, DOE regulations at 10 C.F.R. § 1040.7(b) regarding affirmative action stipulate that, in the absence of a finding of discrimination on the basis of race, color, national origin, sex (where applicable), disability, or age in any program or activity, a recipient may continue to encourage participation by all persons regardless of race, color, national origin, sex, disability, or age. 

Consequently, if a recipient expressly, or with purpose and intent, imposes a benefit or burden on one class of persons (based on their race or sex, for example), to the exclusion of another class of persons (based on their race or sex), it may be found to have imposed a suspect classification that is subject to heightened scrutiny. When a recipient takes this action, the action will be subject to heightened scrutiny and the justification must be sufficient. This is so because federal civil rights statutes are interpreted to be coextensive with the Equal Protections embodied in the Fifth and Fourteenth Amendments to the U.S. Constitution. 

Hence, classifications that are based on race are subject to strict scrutiny, while classifications that are based on sex are subject to intermediate scrutiny. See, e.g. Wygant v. Jackson Board of Education, 476 U.S. 267, 313 (1986); Mississippi University for Women v. Hogan, 458 US 718 (1982); United States v. Virginia, 518 U.S. 515 (1996). Strict scrutiny places the burden on the recipient to prove that: (1) its race-based classification furthers a compelling interest; (2) such classification is demonstrably effective in advancing that compelling interest; and (3) its use of a race-based classification is narrowly tailored to further that compelling interest (i.e., is the least burdensome of all available alternatives). Intermediate scrutiny places the burden on the recipient to prove that: (1) it is acting to further an important objective; and (2) its use of a sex-based classification is substantially related to this important objective.

For more information about Civil Rights in the Office of Economic Impact and Diversity and additional External Civil Rights FAQs, visit: /diversity/civil-rights
 

Equal employment opportunity is an important priority. The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has a Mega Construction Project Program through which it engages with project sponsors to help promote compliance with non-discrimination and affirmative action obligations. Through the program, OFCCP offers contractors and subcontractors on select federally-assisted construction projects extensive compliance assistance, conducts compliance evaluations, and helps to build partnerships between the project sponsor, prime contractor, subcontractors, and relevant stakeholders. 

OFCCP will identify projects required to participate in OFCCP’s Mega Construction Project Program from a wide range of federally assisted projects over which OFCCP has jurisdiction and that have a project cost above $35 million. If selected by OFCCP to participate in this program, DOE will require project sponsors to partner with OFCCP as a condition of their award. Under that partnership, OFCCP will ask these project sponsors to make clear to prime contractors in the pre-bid phase that project sponsor’s award terms will require their participation in the Mega Construction Project Program. Additional information on how OFCCP makes their selections for participation in the Mega Construction Project Program is outlined under the “Scheduling” on the Department of Labor website: https://www.dol.gov/agencies/ofccp/faqs/construction-compliance. 

The Justice40 initiative, created by Executive Order 14008, establishes a goal that 40% of the overall benefits of certain federal investments flow to disadvantaged communities (DACs). DOE’s current Justice40 guidance provides a broad definition of DACs (see pages 8-10). DOE, the U.S. Office of Management and Budget (OMB), and/or the Federal Council for Environmental Quality (CEQ) may issue additional and subsequent guidance regarding the designation of DACs and recognized benefits under the Justice40 Initiative.

Justice 40 is a whole of government initiative with the goal of 40% of the benefits flowing to disadvantaged communities across the portfolio of all relevant federal spending on climate change, clean energy and energy efficiency, clean transit, affordable and sustainable housing, training and workforce development, remediation and reduction of legacy pollution, and the development of critical clean water and wastewater infrastructure.  All BIL and IRA programs are expected to contribute to the goal. In addition, all 144 covered programs must have a goal of 40% of the benefits flowing to disadvantaged communities. Projects with these covered programs must implement these Justice40 goals. 

Per Justice40 guidelines, covered programs and investments are described as follows:

“[A] Federal Government program that makes covered investment benefits in one or more of the following seven areas: 1. Climate change; 2. Clean energy and energy efficiency; 3. Clean transportation; 4. Affordable and sustainable housing; 5. Training and workforce development (related to climate, natural disasters, environment, clean energy, clean transportation, housing, water and wastewater infrastructure, and legacy pollution reduction, including in energy communities); 6. Remediation and reduction of legacy pollution; and 7. Critical clean water and waste infrastructure.

“Pursuant to the Interim Implementation Guidance, a ‘covered investment’ is a federal investment in any one of the following categories: 1. Federal financial assistance as defined at 2 CFR 200.1, including both Federal grants as well as other types of financial assistance (including cooperative agreements, loans, loan guarantees, and direct spending/benefits); 2. Direct payments or benefits to individuals; 3. Federal procurement benefits (acquisition of goods and services for the Federal government’s own use); 4. Programmatic Federal staffing costs (e.g., federal pay for staff that provide technical assistance); and 5. Additional federal investments under Covered Programs as determined by OMB.”

Nearly all DOE programs and investments, including new programs established by BIL as well as well-established programs, are covered by the Justice40 Initiative. Please see /diversity/doe-justice40-covered-programs for an up-to-date list of Covered Programs developed pursuant to OMB’s Interim Implementation Guidance.

Justice40 directs that 40% of benefits from Covered Programs flow to “disadvantaged communities.” OMB’s Interim Implementation Guidance defines a community as either: (1) Geographic: a group of individuals living in geographic proximity (such as census tract), or (2) Common condition: a geographically dispersed set of individuals (such as migrant workers or Native Americans), where either type of group experiences common conditions. 

For the “geographic” definition of community, pursuant to the Interim Implementation Guidance and OMB guidance M-23-09 , DOE recognizes as disadvantaged those census tracts identified by the White House CEJST tool, which can be located at https://screeningtool.geoplatform.gov/.  

DOE's working definition of “disadvantaged” is based on cumulative burden and includes data for 36 indicators collected at the U.S. Census tract level. These indicators can be grouped across the following four categories (the numbers in parenthesis are the number of indicators in each category):

• Fossil Dependence (2)
• Energy Burden (5)
• Environmental and Climate Hazards (10)
• Socio-economic Vulnerabilities (19) 

Pursuant to the current guidance, DOE identified certain census tracts as DACs through undertaking the following analysis: 

1. For every census tract, DOE calculated percentile values for each of the 36 indicators by census tract. 
2. DOE summed percentiles across all indicators to create a score for each census tract. Each indicator was given equal weight; therefore, final scores for each tract could range from 0 to 36, where 36 would represent the largest disadvantage. 
3. Based on the final scores, the top 20 percent of census tracts were selected for each state, ensuring that DACs were identified in every state. 
4. DAC eligibility was further restricted based on income. A census tract selected in step three was identified as a DAC if at least 30% of households are: 

• at or below 200% of Federal Poverty Level; and/or 
• considered low-income households by the U.S. Department of Housing and Urban Development (HUD), defined as households earning less than 80% of area median income. 

In sum: To be considered a DAC in the DOE reporter, a census tract must rank in the 80th percentile of the cumulative sum of the 36 burden indicators and have at least 30% of households classified as low-income.

Nationwide, 13,581 census tracts were identified as disadvantaged (18.6% of 73,056 total U.S. census tracts). Additionally, federally recognized Tribal lands and U.S. territories, in their entirety, are categorized as DACs in accordance with OMB’s Interim Guidance “common conditions” definition of community. 

DOE’s convenient online DACs mapping tool can be accessed at: https://energyjustice.egs.anl.gov/. Geospatial data files and an excel spreadsheet of the underlying DACs data are available at www.energy.gov/justice40.
 

A project does not need to be geographically situated in a DAC for a DAC to benefit from implementation. In addition, DACs are not limited to geographic proximity. DACs are also defined as those with a common condition: a geographically dispersed set of individuals (such as migrant workers or Native Americans), where either type of group experiences common conditions. The benefits can be measurable direct or indirect benefits described below, as well as secondary benefits from the long-term impacts of the project. 

A project does not need to be geographically located in a DAC for a DAC to benefit from implementation. In addition, DACs are not limited to geographic proximity. DACs are also defined as those with a common condition: a geographically dispersed set of individuals (such as migrant workers or Native Americans), where either type of group experiences common conditions. 

Benefits include, but are not limited to, measurable direct or indirect investments or positive project outcomes that achieve or contribute to the following in DACs:

1. a decrease in energy burden
2. a decrease in environmental exposure and burdens@
3. an increase in access to low-cost capital
4. an increase in job creation and job training for individuals
5. increases in clean energy enterprise creation and contracting (e.g., minority-owned or disadvantaged business enterprises)
6. increases in energy democracy, including community ownership
7. increased parity in clean energy technology access and adoption
8. an increase in energy resilience

A benefit can be identified as accruing to a DAC if it achieves or contributes to one or more of the eight policy priorities identified above. For greater clarity, the below matrix (Figure 1) provides examples of measurable benefit and how they map to the different DOE policy priorities mentioned above. 

(Figure 1)

Other examples of positive long-term outcomes in DACs include wealth creation, workforce development, reduced energy or environmental burdens, and long-term development. 

The benefit examples provided above are not intended to be all-inclusive and funding participants are encouraged to research and identify benefits that can be tracked that may not be listed in the figure above. Each FOA may tailor the benefits that are most applicable to the project.