OFCCP Issues New Directive in Furtherance of Commitment to Increased Transparency

by Laura A. Mitchell and Christopher T. Patrick

Under the leadership of new OFCCP Director Ondray Harris, the Agency has issued its first policy directive of 2018. Directive 2018-01, effective February 27, addresses an area of concern discussed at length during the Agency’s listening sessions earlier this year: the need for increased transparency.

The Directive instructs all OFCCP offices to issue a Predetermination Notice (“PDN”) prior to issuing a Notice of Violations when the Agency has concluded its review and believes findings of discrimination may be appropriate. A PDN is a letter OFCCP uses to inform contractors of the Agency’s preliminary findings of employment discrimination and serves as a way to provide contractors an opportunity to respond to preliminary findings prior to OFCCP deciding to issue discrimination violations.

Before the Directive, OFCCP

typically reserved use of the PDN for systemic discrimination cases and permitted regional and district offices discretion in whether to issue the PDN prior to issuing a Notice of Violation (NOV).

But now, PDNs are required and, it is Agency policy that,

OFCCP will issue PDNs for preliminary individual and systemic discrimination findings identified during the course of compliance evaluations.

This is welcome news for contractors facing aggressive, protracted compliance reviews in which it was uncertain whether they would have notice of OFCCP’s preliminary findings. This additional step in the process will hopefully foster an open dialog between contractors and OFCCP to clarify misunderstandings and correct errors in analyses.

The Directive also suggests increased National Office oversight and review of potential violations before the Agency concludes that discrimination violations are appropriate – requiring that the regional Solicitor review all PDNs and submit them to OFCCP’s national office for a “review and final decision.” It even halts violations that are drafted but not yet issued, and requires that local office issued a PDN instead so that the contractor may respond before any formal allegations of discrimination are issued.

While the ultimate impact of this Directive is still unclear, it an encouraging policy step in Director Harris’s young tenure.

This Directive is new, and it’s implementation still developing. The Directive indicates OFCCP will be updating the Federal Contractor Compliance Manual (FCCM) consistent with the Directive.  We will keep you posted as we learn more.

Federal Contractor Paid Sick Leave in Effect

As the first quarter of 2018 nears its end, and we are adjusting to an extra hour of daylight (and an hour less sleep this weekend) we wanted to take a moment to remind you about the Paid Sick Leave obligations that went into effect in January 2017 for covered contractors.   For a refresher of these obligations, check out the blog post my colleague Megan Holstein and I recently posted.

As a reminder, contracts entered into after January 1, 2017 that fall into one of these four categories are subject to these obligations:

  1. procurement contracts for construction covered by the Davis-Bacon Act (DBA);
  2. services contracts covered by the Service Contract Act (SCA);
  3. concessions contracts, including any concessions contract excluded from the SCA by DOL’s regulations at 29 CFR 4.133(b);
  4. contracts in connection with federal property or lands and related to offering services for federal employees, their dependents, or the general public.

If you haven’t already done so, check your contracts to confirm whether they contain reference to Executive Order 13706: Paid Sick Leave for Workers on Federal Contracts.

Public Advocacy Group Sues OFCCP in Connection with EEO-1 FOIA Requests

As we’ve been discussing, now is the time for employers to be filing their annual EEO-1 reports.  Coincidentally, and perhaps not un-intentionally, Public Citizen, a non profit advocacy group is also using this time to sue OFCCP around its practices of withholding information involving employers’ EEO-1 reports.

On February 26, Public Citizen filed suit in Washington D.C. District Court claiming that OFCCP improperly denied its Freedom of Information Act (FOIA) requests for information on who is looking into Employer EEO-1 data.

FOIA requires federal government agencies to disclose certain information under their control.  FOIA requests are subject to a number of exemptions that protect the release of private, classified, or personal data based upon different rationales.  Typically when we see FOIA requests involving OFCCP and EEO-1 reports, the requests are seeking release of EEO-1 data for specific employers.

Interestingly, Public Citizen’s lawsuit is not based upon accessing the substantive information contained in the EEO-1 Reports rather, it is seeking information on who else is submitting FOIA requests to try to access employer EEO-1 data and for what purposes these other parties are seeking the information.  In this case, OFCCP partially denied the Plaintiff’s FOIA request based upon its supposed policy of  withholding information regarding “open” (ongoing)  FOIA requests.   

“OFCCP advised that, as a matter of policy, it withholds all records related to “open” FOIA requests on the theory that they fall within the scope of FOIA exemption 7.

 Exemption 7 of FOIA allows government agencies to deny release of information if releasing the information “could reasonably be expected  to interfere with law enforcement proceedings.” The complaint in this case contends that the processing of FOIA requests by the Agency is not any kind of law enforcement proceeding and therefore violates the FOIA statute.

It will be interesting to see how OFCCP responds and whether they will ultimately be required to disclose the information.


UPDATE: EEOC Clarifies Change to EEO-1 Reporting for Employees at Client Sites

As we recently reported, the instructions for filing current EEO-1 reports includes a change to the reporting requirements for employees working at client sites.

Acknowledging confusion surrounding the instruction, EEOC presented the following today during a webinar held for members of the Industry Liaison Group community:

It has come to the EEOC’s attention that there may be some confusion as to how employers are to report employees working at client sites.  Some employers have been reporting the address of client sites for employees, while other employers have instead been rolling those employees up to a non-client site employer address.  Given this confusion, employers will not be considered “non-compliant” if they have chosen one approach over the other – either reporting by client site or by non-client site employer address. 

The EEOC noted it is currently reviewing how to address client site reporting. We will provide an update when additional clarification or direction is available.

Changes to EEO-1 Reporting for Employees at Client Sites

As we shared previously, the portal is currently open for EEO-1 Reporting.   In addition to the change in timing of reporting and other administrative items, the EEOC Joint Reporting Commission has made a change to the way employers must report certain types of employees.

Employers with employees who “regularly report” to client sites must now report such employees on an appropriate EEO-1 report using the address of the client site – as opposed to reporting them using the employer’s address.  The employees would not be on the client’s EEO-1 reports or combined therewith, but rather made in connection with the employer’s own EEO-1 reporting.  The details are set forth on page 5 of the “How to File an EEO-1 Report” and page 132 of the “2017 EEO-1 User Guide.”   The guidance does not define or provide a benchmark as to what is considered “regularly” reporting.

The implications of this for OFCCP audits are unknown at this time, but conceivably, since OFCCP relies on EEO-1 reports as part of its audit selection process, if an employer files a Type 4 EEO-1 report reflecting 50 or more of its employees at the address of a client, the report may be a factor triggering an OFCCP compliance evaluation of that establishment.  It is too soon to know the full effect of this change, or the position OFCCP will take on it, but it is something to keep in mind.

Proposed Budget Seeks to Cut DOL Funds

The highly anticipated proposed budget released today by the White House included expected budget cuts for the U.S. Department of Labor.  While cutting funds for the DOL, the proposed budget did not resurrect the previously raised possible merger of OFCCP and EEOC.

The President’s FY2019 Budget for the Department of Labor starts with the following introduction:

Given the budget constraints the Nation faces after decades of reckless spending, and the current need to rebuild the Nation’s military without increasing the deficit, the Budget focuses DOL on its highest priority functions and disinvests in activities that are duplicative, unnecessary, unproven, or ineffective. The Budget also takes steps to reorganize and modernize the Agency’s operations so scarce taxpayer dollars are spent well.


In total, the Budget requests $9.4 billion for DOL, a $2.6 billion, or 21-percent decrease, from the 2017 enacted level.

With respect to OFCCP specifically, the Office of Management and Budget proposes reducing OFCCP’s budget from $104M to $91M, a 12.5% reduction and also proposes reducing the budget of the Office of Disability Employment Policy (ODEP) from $38M to $27M.

The description of OFCCP in the Budget Appendix, reiterates that the Administration is looking to streamline and simplify the structure of the agency, stating specifically

The 2019 Budget proposes improving organization efficiency and effectiveness by modernizing the agency’s operational model, aligning staff workload with where financial contractors are located, and establishing Skilled Regional Centers.

We’ll keep you posted with relevant updates as the evolve so, stay tuned.

Breaking News: CSALs Are In the Mail

OFCCP’s website has been updated to reflect that the Agency placed 1,000 Corporate Scheduling Announcement letters in the mail on February 1, 2018.  We have seen one of the letters – it is dated January 31, 2018, signed by new OFCCP Director Ondray Harris, and addressed generically to the “Human Resources Director.”  OFCCP last issued CSALs around this same time a year ago.

The website notes scheduling letters will go out starting March 19, 2018.

In a change from past practices, OFCCP says:

  • No more than 10 establishments of a single contractor are placed on the scheduling list.
  • No more than four establishments of a single contractor are placed on the scheduling list for a single district office.
  • No establishment with an audit closed in the last five years is placed on the scheduling list.

Unlike last year, the website does not provide details about the industries or the distinct number of companies notified.

As in the past, we urge you to notify your facilities to be on the lookout for one of these letters and to forward it to the proper personnel immediately so you can start preparations now for the impending audit.  As we like to say, there is nothing better than the gift of time, so make sure you take advantage of it.  Of course (and perhaps even more importantly), all facilities should also be on the lookout in March for the actual scheduling letter which will start the clock ticking on the 30 day response deadline.

We will update with any additional details as they become available.

New OFCCP Leadership Welcomes Contractor Community During Stakeholder Meetings

This week, newly appointed OFCCP Director Ondray T. Harris, along with Special Advisor, Craig Leen, and Director of Policy, Debra Carr, held a series of meetings with various stakeholder groups from the federal contractor and civil rights communities.  This was the first opportunity for many who regularly work with OFCCP to meet Director Harris and Mr. Leen.  As a representative of many in the contractor community, Jackson Lewis participated in the meeting for contractor groups.  Separate meetings were held with representatives from civil rights groups and employers themselves.

 The meeting included a robust discussion and the exchange of ideas on numerous topics of interest to both the contractor community and OFCCP.  We are happy to report that Director Harris, Mr. Leen, and Ms. Carr were welcoming, personable, and genuinely engaged in the discussion.  While new to the Agency, Director Harris and Mr. Leen clearly understand the important role OFCCP plays and the necessity of working with the contractor community to achieve common objectives.  We look forward to working with Director Harris and his team.  As always, we will keep you posted on any noteworthy news.


EEO-1 Survey Portal Open for Reporting

The portal is now open for employers to file their 2017 EEO-1 Surveys.  The deadline to file this year is March 31, 2018.  Following a reprieve in 2017, this will be employers’ first filing since the Fall of 2016.  While giving employers a break from reporting, the hiatus also allowed the EEO-1 Joint Reporting Committee time to implement some changes to the reporting portal.

In addition to looking somewhat different, the online reporting process now includes some additional security protocols.  To assist users, The EEO-1 Joint Reporting Commission has published an EEO-1 Survey User Guide with helpful information.  The User Guide provides step-by-step instructions with screenshots and walks users through both manual and batch upload reporting.

Additionally, first time users can obtain information and guidance on filing through the “First Time Users” link.

For questions you can reach out to the Commission for assistance via e-mail E1.TECHASSISTANCE@EEOC.GOV or by phone, 1-877-392-4647 (toll-free).

It’s Time to be Thinking about your 2018 EEO-1 Reports

Now that you’ve successfully filed your 2017 VETS-4212 reports, it’s time to focus on EEO-1 reporting.  Most employers are not accustomed to focusing on EEO-1 reporting going into a new year, but following the filing reprieve in 2017, employers need to make sure they are prepared to file in 2018.

As previously reported, federal contractors and other Title VII employers sighed collective relief when the federal government announced the indefinite suspension of the requirement to report W-2 pay data in the 2017 reporting cycle.

The EEO-1 Joint Reporting Committee later clarified the following:

  • The deadline to file EEO-1 reports for 2017 is March 31, 2018;
  • The Reports must be based on a payroll period in October, November or December, 2017; and,
  •  Filers may use the same EEO-1 form used in 2016.

Perhaps to atone for separating the VETS-4212 and EEO-1 reporting deadlines VETS has also clarified  that all federal contractors may pull a single data snapshot as of December 31, 2017 for both the EEO-1 report to be filed by March 31, 2018, and for the VETS-4212 report to be filed by September 30, 2018.

While the timing of the submission of the reports will remain different, employers looking for efficiencies can use a single snapshot as of the previous year’s December 31st, but are not required to do so:  employers may use any payroll period in the 4th quarter each year.

There is an added benefit for those contractors using a calendar-year AAP cycle:  the December 31, 2017 workforce snapshot may also be used for your 2018 plans.