We have learned that OFCCP has posted a revised version of the most recent CSAL on its website.

Approximately 84 entries have been modified so that some promotion focused reviews have been changed to establishment reviews and in at least one instance, an additional establishment review was added.

Also, it is worth noting that OFCCP has not yet announced what it will be using as a scheduling letter for the new promotion and accommodation focused reviews.  They have not requested, nor received, OMB approval for use of any specific scheduling letter for these types of reviews.

As always, stay tuned for further updates.

As reported in today’s Federal Register, OFCCP is seeking regulatory authority to:

  • Require federal contractors to annually certify they have prepared AAPs via an online interface; and,
  • Institute “a secure method” to electronically submit AAPs when contractors are scheduled for an audit.

As we reported nearly a year ago, because OFCCP cannot conduct a compliance review of every federal contractor location every year, OFCCP wants an efficient alternative method to ensure all federal contractors are regularly preparing annual AAPs.  OFCCP’s desire for an annual certification process stems directly from a pre-COVID-19 Government Accountability Office (GAO) criticism that 85% of contractors do not timely submit AAPs within the 30-day deadline.  According to the GAO, that statistic “suggests that OFCCP processes do not ensure that all contractors are complying with their obligation to complete and annually update an AAP.”  Due to the COVID-19 pandemic, that percentage may now be even higher.

The Federal Register notice is short on details.  Instead, OFCCP is soliciting your input regarding, among other topics:

  • The frequency of the certification (the proposal is for annual certification);
  • The type of information and level of detail to be required in the certification;
  • Whether certification would be practically useful to OFCCP in service of its mission, as compared to the burden on contractors; and,
  • Whether the estimated burden on contractors (36 minutes to certify) is accurate.

The notice does appear to propose that contractors upload AAPs annually as part of the certification process, a possibility floated in the GAO’s 2016 report.

Contractors can submit their input to OFCCP on or before November 13, 2020 via the federal e-Rulemaking portal at https://www.regulations.gov/ .

As we receive more detail and assess the possibilities for the certification process, we will make sure to bring you our insights and updates.

As anticipated, by perhaps earlier than expected, OFCCP has released the next round of anticipated audit.  The 2020 CSAL is included in OFCCP’s FOIA website.  The list has a total of 2,250 establishments and includes contractors selected for new accommodation and promotion focused reviews.  Institutions of higher education are also included in this list as OFCCP indicated they would be following release of the Educational Institutions Technical Assistance Guide.   There is a separate list of 200 Construction contractors selected for audit.  This is the first time construction contractors have been included on the CSALs since the release of the new Construction Technical Assistance Guide.

As with past lists, the CSAL is an advance notice of audits to be scheduled in the future.  Contractors will be notified of the actual commencement of their audits by receipt of a Scheduling Letter.  OFCCP is still in the process of scheduling audits identified on previous CSAL lists, and has just begun scheduling VEVRAA Focused Reviews.

We will provide additional details, including timing of scheduling of audits from this CSAL, as they become available.

 

As it has done previously, OFCCP announced a three-month (August 27, 2020 to November 27, 2020) national interest exemption from AAP federal contractor obligations for “contracts entered into specifically to provide Hurricane Laura relief.”  The exemption relieves these contractors from the obligations to prepare written AAPs under Executive Order 11246, Section 503 and VEVRAA.

What this means is that while a federal contract or subcontract to provide hurricane relief will not trigger the duty prepare a written AAP, the exemption does not apply to federal contractors who are otherwise obligated to prepare AAPs based on other covered federal contracts or subcontracts.

Moreover, the exemption is limited.  It does not apply to obligations to:

  • Not discriminate or retaliate against any protected group;
  • Post the “Equal Opportunity is the Law” notice for applicants and employees;
  • Maintain personnel records; and,
  • List job openings with the appropriate local employment service office or American job center.

 

On Monday this week, OFCCP announced user-friendly updates to the National Pre-Award Registry and a new VEVRAA Hiring Benchmark Database.  Both tools appear to make information access easier for federal contractors, as well as individuals with vision challenges.

The Registry is a useful tool for contractors because it identifies contractor AAP locations that have successfully completed a compliance evaluation and are subject to the Agency’s 24-month audit grace period.  The Registry data is now available at the OFCCP website in Excel® format and, thus, searchable.

OFCCP’s Registry page also includes a Pre-Award Process Guide that federal agency contracting officers use when seeking to contract with a specific supply or service vendor.  This guide may be helpful to contractors who want to see what contracting officers must do before awarding your company a contract.

OFCCP has also launched a VEVRAA benchmark page that tells us what the national benchmark is currently (5.7%) and when the updated benchmark became effective (March 31, 2020).  For those contractors that choose to customize their benchmark, the page provides guidance on how to set your own benchmark in a compliant fashion, including a link to State-specific veteran availability data.

Lastly, the Agency has improved accessibility to these tools for individuals with vision impairments.

As anticipated OFCCP has started scheduling VEVRAA Focused Reviews, the Agency announced today via e-mail.

The announcement highlighted a number of VEVRAA resources available for contractors, including:

OFCCP encourages contractors to contact them directly with questions either by calling OFCCP’s toll-free helpline at 1-800-397-6251 (TTY 1-877-889-5627) or visiting their website to submit a question.

As an aside, and by way of reminder . . . contractors should start using the new Section 503 Disability Self-Id form as of today.

In the next chapter of the EEO pay data collection story, the EEOC announced today it has contracted with the National Academies of Sciences, Engineering, and Medicine’s Committee on National Statistics (CNSTAT) to

conduct an independent assessment of the quality and utility of the EEO-1 Component 2 data for FY 2017 and 2018.

This is not an unexpected move and in large part, anticipated, especially after remarks by Commissioner Victoria Lipnic and others after the Agency collected the data as required by court order last year.

In its announcement, the Agency indicated the analysis of the data commenced July 1 and is scheduled to last through calendar year 2021.

EEOC Chair Janet Dhillon believes the study will

not only answer critical questions about the data that was collected, but will give the Commission valuable information as we consider the future of pay data collection.

CNSTAT is no stranger to evaluating pay data reporting as it assessed methods for measuring and collecting pay information for the Agency in 2012 and issued a final report, Collecting Compensation Data from Employers, which has been an insightful reference and guide-book since its issuance.

We look forward to learning the results of CNSTAT’s current assessment.

In another installment of the NILG’s 2020 Virtual Conference Webinar Series, OFCCP’s National Policy team presented updates on the Agency’s directives, regulatory activity, policies and procedure developments.

Director of Policy and Program Development, Tina Williams confirmed “the agency has been busy” and walked attendees through the policy developments and upcoming Agency initiatives.  Highlights of the presentation included:

  1. Announcement that OFCCP will not be extending the COVID-19 National Interest Exemption.  The Agency initiated the exemption in March 2020 in response to the COVID-19 pandemic.
  2.  Update that the Agency is in the process of developing Religious Exemption and Resolution Procedures final rules.  The recently final rule addressing TRICARE providers was also discussed.
  3. Discussion of focused reviews, including the Agency’s completed Section 503 focused reviews, upcoming VEVRAA reviews and development of promotion and religious accommodation focused reviews.  Ms. Williams explained OFCCP is in the process of developing landing pages for these latter types of focused reviews and acknowledged the promotion reviews “will be slightly tricky.”
  4. Acting Deputy Director of Policy, Christopher Seely provided a recap of the Directives OFCCP released in FY 2020
  5. OFCCP intends to continue its Town Hall programs with the introduction of virtual Town Halls on “yet to be determined topics” by the end of the calendar year
  6. The Agency is working on new recognition programs and initiatives, including Closure Letters with Distinction.
  7. Ms. Williams echoed Director Leen’s comments from the webseries Opening Remarks regarding support for the Indian and Native American Employment Rights Program (INAERP)
  8. The Agency is also working on finalizing scheduling letters and audit procedures for construction contractors.
  9. As a final point, the presentation touched on the Agency’s work on  publishing additional technical assistance guides, including a guide for Supply & Service contractors.

To conclude the webinar, Ombusman Marcus Stergio presented on the OFCCP’s Ombuds Service.  To date, the Ombuds Service has handled 85 referrals and is looking forward to handling more.

The NILG’s 2020 Virtual Conference continues in the coming weeks and we will be sure to keep you updated along the way.

During the opening remarks of the 2020 NILG Annual Conference – this year being held virtually as the NILG 2020 Webinar Series – OFCCP Director Craig Leen announced the Agency will initiate VEVRAA Focused Reviews in as little as two weeks.  Prefacing that the Agency will be giving consideration for the COVID-19 pandemic, Director Leen announced OFCCP will soon start sending out scheduling letters to those companies previously identified by the Agency in the VEVRAA Focused Review supplemental scheduling list.  As we previously reported, OFCCP recently received approval of its VEVRAA Focused Review Scheduling Letter.

As a reminder, OFCCP has published a number of Technical Assistance resources on its VEVRAA landing page to assist contractors prepare for these reviews.  During his remarks, Director Leen confirmed the VEVRAA Focused Reviews will include evaluation of contractors’ treatment of veteran spouses.  Additionally, according to OFCCP’s FAQs, the Agency will be conducting virtual on-site reviews as part of the VEVRAA Focused Review process.

We will continue to monitor this development and provide an update with any new information.

OFCCP has finalized its rule making to officially confirm the Agency does not, and should not, exert authority over TRICARE providers.  OFCCP first took this position in a proposed rule making in November 2019.  In the final rule, OFCCP concluded it does not have jurisdiction over healthcare providers based solely on TRICARE provider network agreements.  In addition, OFCCP instituted a national interest exemption for TRICARE providers.  This rule finally provides legal certainty and formal regulatory guidance to organizations that provide TRICARE services.

With that said, it is critical to understand that both the proposed and final rule make it clear that

OFCCP will retain authority over a health care provider participating in such a network arrangement if the health care provider holds a separate covered Federal contract or subcontract.

Notably, OFCCP’s Final Rule does not affect its jurisdiction over healthcare providers participating in the Federal Employees Health Benefits Program (FEHBP), or Veterans Administration health benefit provider (VAHBP) agreements.  Thus, while the Final Rule does not affect jurisdiction in these areas, OFCCP states in the Final Rule that it

will consider additional subregulatory guidance as necessary to provide certainty and clarity

to the status of FEHBP and VAHBP providers.

For now, at least, this story seems to have finally reached a conclusion.