OFCCP’s Agenda for 2019: More Audits and Increased Transparency

By Laura A. Mitchell, James D. Mackey, and Suzanne Donnelly Corwin

As contractors start to see new scheduling letters arrive from OFCCP’s latest round of advance notification letters, OFCCP has new opportunities to  demonstrate its commitment to transparency, through implementation of the Agency’s recently released Directive 2018-08: Transparency in OFCCP Compliance Activities. The Agency’s stated philosophy is that transparency should “guide OFCCP staff during every stage of the compliance evaluation, from beginning to end” and the Directive sets out the Agency’s roadmap for transparency in audits.

And it sounds like the Agency is preparing for more opportunities to test drive their road map.  In recent testimony given to the U.S. Commission on Civil Rights, which is currently evaluating federal civil rights enforcement agencies, Acting Director Craig Leen shared his plans to increase the number of audits performed by the agency considerably this fiscal year – from fewer than 1,000 to around 3,500, and include focused reviews. Leen testified he hopes up to 500 of the reviews in the coming year will be focused reviews.  As a reminder, OFCCP’s fiscal year runs from October 1 through September 30 each year.

Transparency Directive

As we previously shared, the Transparency Directive is a detailed explanation of roles, responsibilities and expectations for OFCCP and contractors going through OFCCP compliance reviews and addresses the following components of the audit process:

Scheduling:

OFCCP will delay issuing Scheduling Letters until at least 45 days after issuing Corporate Scheduling Announcement Letters (“CSALs”) in order to afford contractors additional time to prepare for audit. Note, this means that for the most recent CSALS issued on September 7, OFCCP could have started issuing Scheduling Letters as soon as October 22 and we are aware of letters dated October 31, 2018.

Pre-Desk Audit:

Setting a collaborative tone from the start, OFCCP has committed to contacting contractors 15 days after issuing a Scheduling Letter to establish the point of contact, offer technical assistance, and explain what to expect during the audit. Importantly, upon request, contractors may take advantage of a one-time 30-day extension for submission of supporting data, provided that they submit the basic EO 11246, Section 503, and VEVRAA AAPs within the original 30-day timeline. However, contractors should note the directive points out that extensions for basic affirmative action plans will not be granted except in “extraordinary” circumstances.

Finally, OFCCP’s more generous timeline comes with a catch. Failure to submit AAPs or supporting data in a timely fashion will now result in the automatic and immediate issuance of a procedural Notice to Show Cause, which does not require approval from the National Office. While a Notice to Show Cause will not necessarily result in a Conciliation Agreement, any failure to submit materials in a timely manner must be documented in the Closure Letter.

Desk Audit:

Perhaps the most impactful change in the new Directive involves the streamlining of the Desk Audit stage. Where there are no indicators of discrimination, OFCCP aims to complete audits quickly: ideally, and in the majority of cases, within 45 days. In order to accomplish this goal, per the directive, OFCCP should initially limit information requests to those that “fulfill, and if necessary, clarify” data originally requested by the Scheduling Letter.

Notably, requests for information beyond the requirements of the Scheduling Letter and Itemized Listing should only occur after completion of the desk audit.

Pre-Onsite:

Should OFCCP find indications of discrimination during the Desk Audit, the compliance evaluation proceeds to the “Pre-Onsite” stage. OFCCP will make subsequent information requests to refine and analyze indicators. Contractors should be aware that these additional information requests “must include the basis for the request, be reasonably tailored to the areas of concern, and allow for a reasonable time to respond.” At this point, OFCCP must also provide the contractor with a high-level summary of preliminary indicators in its on-site confirmation letter.

Interestingly, OFCCP does not provide new guidance with respect to the on-site stage of the compliance evaluation.

Offsite Review:

After the on-site takes place, OFCCP will begin the Offsite review. Making clear its desire to be more collaborative and increase transparency, Compliance Officers are required to reach out to contractors at least once every 30 days to keep them apprised of the status of the audit.

Conciliation:

OFCCP also intends to take a collaborative approach to resolve the audit. Importantly, this includes “sharing information and essential source data in electronic format” to allow the contractor to understand and replicate OFCCP’s findings, as well as making good faith efforts to engage with contractors to support conciliation efforts. Here, OFCCP suggests that it may entertain “innovative remedies including apprenticeship programs and proactive corporate-wide solutions.”

 

Event Time
 

Time between Issuing CSALs to Scheduling Letter

 

Minimum of 45 Days

OFCCP Contacts Contractor to Establish Primary Contact, provide opportunity for technical assistance 15 Days after issuing Scheduling Letter
Additional Time for Supporting Data Submission 30 Days Upon Request
Time to Respond to Incomplete AAP Submission 15 Additional Days
Time to Respond to a Notice to Show Cause 30 Days from Receipt

The bottom line: per the Directive, contractors should expect additional transparency and certainty when undergoing an audit, as well as a more efficient, collaborative OFCCP. OFCCP’s new Directive presents a clear roadmap from CSAL to Desk Audit to Onsite to Resolution. While contractors have additional tools, increased transparency, and a more collaborative Agency than employers have seen in recent years, they should still work proactively to achieve and maintain compliance.

For the latest updates in OFCCP Compliance, please stay tuned.

OFCCP Seeks Public Comment on Leadership in Equal Access and Diversity Award

By Laura A. Mitchell and Suzanne Donnelly Corwin

Late last week, OFCCP published a notice in the federal register seeking public comment regarding its proposed Leadership in Equal Access and Diversity (“LEAD”) Award.  The LEAD award will

 recognize federal contractor and subcontractor establishments that have developed and successfully implemented comprehensive equal employment opportunity and nondiscrimination programs.

OFCCP and the Department of Labor’s Women’s Bureau are partnering to create this award.

This, and the agency’s previously announced Disability Inclusion Recognition Program, comes as no surprise given the recent release of Directive 2018-06, which announced the Agency’s intention to develop such programs. 

The public comment period for the LEAD award closes on December 18, 2018.

 

OFCCP Seeking Comment on Contractor Disability Inclusion Recognition Program

Appearing in today’s federal register is OFCCP’s request for comment on the proposed structure and details of the agency’s new Excellence in Disability Inclusion Award.  The award

will highlight successful practices and strategies of contractors that have expanded and improved recruitment, hiring, retention, and promotion opportunities for individuals with disabilities.

In August, at the ILG National Conference, Acting Director Leen announced the Agency’s intention to develop programs to recognize contractors for their excellence in affirmative action.  Following the announcement, OFCCP released Directive 2018 -06 which formalized OFCCP’s intention to develop such programs.  We understand OFCCP intends to implement a separate recognition award for programs focusing on race, gender and veteran inclusion.

Through today’s Notice, the Agency is seeking feedback on the draft award nomination form and instructions to be considered for the award.  As proposed, there are four threshold criteria to being eligible for consideration and seven required elements to the nomination submission.

This is OFCCP’s first policy initiative under Harvey Fort, who moved into an Acting Director role of OFCCP’s Office of Policy and Development following Debra Carr’s departure from the agency at the end of last month.

The public comment period ends December 4, 2018.

OFCCP and National Industry Liaison Group Enter into Memorandum of Understanding

In continued commitment to restoring the Agency’s relationship with the contractor community, OFCCP recently announced it has entered into a three-year Memorandum of Understanding (“MOU”) with the National Industry Liaison Group (“NILG”) in order to foster collaboration between the federal contractor community and OFCCP.

For those not familiar with the organization, the NILG is a non-profit organization formed in 1992 that focuses on affirmative action and equal employment opportunity for federal contractors and other employers.  The NILG Board supports approximately 61 Industry Liaison Groups (“ILGs”), which are comprised of small, mid-sized and large federal contractors and subcontractors across the country. Local ILGs operate in every OFCCP region. “Because of its unique function as a facilitator of wide–ranging dialogue between federal agencies and the regulated community, the NILG is well–positioned to address important compliance and other issues regarding affirmative action and equal employment opportunity.”

Specifically, the MOU, contemplates a number of objectives:

  • Exploring and resolving contractor compliance challenges that may be obstructing affirmative action and equal employment opportunity;
  • Publicizing successful apprenticeship programs as a means to develop a pipeline of diverse workers; and,
  • Improving OFCCP’s contractor education and compliance tools and resources, including an ongoing dialogue on providing more transparency to federal contractors regarding OFCCP’s compliance review process and procedures.

As part of the MOU, both parties have committed to foster the achievement of its objectives.  For example, OFCCP commits to:

  • An annual meeting with the NILG to review the implementation of the MOU;
  • Participate in NILG’s annual conference; and,
  • Outreach initiatives that encourage NILG and local ILG members to provide constructive feedback on OFCCP’s compliance evaluation process, education, outreach, and compliance assistance activities.

Some of the NILG’s commitments include:

  • Using the annual OFCCP meeting to constructively identify and explore concerns raised by contractors related to OFCCP’s compliance evaluation process and the training and education barriers that effect contractor compliance;
  • Working cooperatively with OFCCP to ensure the usefulness of regional or local ILG–OFCCP meetings as compliance assistance opportunities; and,
  • Proactively informing members of local ILGs of OFCCP initiatives, events, and other opportunities that provide contractors an opportunity to give OFCCP constructive feedback about its program.

We look forward to this renewed spirit of cooperation between OFCCP, the NILG and the contractor community.

OFCCP Revises Latest CSAL List

It appears OFCCP has made some updates to its latest Corporate Scheduling Announcement List release.  When accessing the current publicly available list through OFCCP’s website, the resulting file now displays a header which indicates the file contains “addresses updated as of September 24, 2018.”  Upon close review and comparison with the original list posted last week, it seems OFCCP has updated city and state information for some the establishments selected as part of the supplemental selection process.  For example, initially, an establishment in Irvine, CA appeared on the list for a particular company.  On the revised supplemental list, while the street address for the establishment remains the same, the city and state are now be reported as Hampton, VA. There are a handful of other updates, like filling in or correcting a parent company or unit name, but the vast majority appear to be address modifications.

If any of your company’s establishments appeared on the supplemental list, it is a good idea to revisit the list to confirm the location or locations selected for review.

 

OFCCP Makes CSAL List Supplement Publicly Available

Wondering whether your organization has been selected for an upcoming audit as part of OFCCP’s recent Corporate Scheduling Announcement Letter (CSAL) list supplement?  Well, wonder no more.  OFCCP has made publicly available its most recent CSAL supplement as well as the two previous CSAL lists (2017 and 2018).

As a reminder, CSALs are a “courtesy notification to an establishment selected to undergo a compliance evaluation” and are sent in advance of the actual scheduling letter that initiates the audit.

Under The Freedom of Information Act (FOIA) a person has the right to request access to federal agency records or information. As a federal agency the Department of Labor (DOL) is required to disclose records requested in writing by any person, unless the information is protected by one of the exemptions provided for in the FOIA statute.  By making this information available for public consumption, proactively, without the need for a FOIA request, OFCCP seems to be taking the position that the information is (1) of public interest, (2) sought often enough to warrant proactive disclosure, and (3) not protected by any of the available FOIA Exemptions.

Breaking News: OFCCP Releases Compliance Transparency and Ombud Service Directives

There is no rest for the weary at OFCCP.  Continuing the steady flow of Directives and proposals as well as audits coming out of Washington D.C., the Agency has released two additional directives in furtherance of the Administration’s commitment to transparency and certainty.

The first, Directive 2018-08: Transparency in OFCCP Compliance Activities  will “ensure transparency in all stages of OFCCP compliance activities to help contractors comply with their obligations and know what to expect during a compliance evaluation, and to protect workers from discrimination through the consistent enforcement of OFCCP legal authorities.”  The detailed directive sets out roles and responsibilities for OFCCP and contractors during a compliance review as well as policies and procedures to be followed.  The Directive also includes a model on-site letter that will be used by OFCCP to request an on-site review.

OFCCP also released Directive 2018-09: OFCCP Ombud Service that announces the planned implementation of an Ombud Service in the national office of OFCCP.  The service will

facilitate the fair and equitable resolution of specific types of concerns raised by OFCCP external stakeholders in coordination with regional and district offices.

We will be digging into each of these directives, audit transparency and the Ombud Service,  further and will provide our thoughts and insights in the coming days.

 

OFCCP Seeks to Favorably Tweak Requirements to Encourage Contractors to Consider Functional Affirmative Action Plans

Has your organization ever considered switching from “establishment” AAPs to functional affirmative action plans (“FAAPs”)?  OFCCP wants contractors to consider moving to FAAPs and, in that spirit, is looking to make FAAPs more attractive by proposing new FAAP requirements that would lighten the burden for those who apply for, and those that already have, FAAP agreements with OFCCP.  OFCCP last modified the FAAP requirements in 2016 but the program was significantly changed in 2013 to its current structure.

Generally, covered federal contractors are required to have a written AAP for each “establishment” with 50 or more employees. This baseline requirement presumes a contractor’s personnel activity decisions and AAP compliance efforts are centered around a physical establishment. That’s not always the case. As the Agency acknowledges

an affirmative action program only covering employees in one building at a specific geographical location does not always reflect how business actually operates.

Rather, it may make better sense for some contractors to prepare AAPs for each of the company’s autonomously operating functional units.

For example, a contractor may have manufacturing, sales and marketing, corporate, and service delivery functions and sub-functions that span multiple locations, in different geographic regions. If those functions/sub-functions operate “autonomously,” and have “identifiable personnel practices or transactional activities specific to the functional or business unit (e.g., applicant flow, hires, promotions, compensation determinations, terminations, etc.) that are distinguishable from other parts of the contractor,” the contractor may seek OFCCP approval to prepare FAAPs according to those functions, as opposed to an establishment-based AAP.

To foster consideration of FAAPs, OFCCP is sweetening the pot by making the FAAP option more desirable and less burdensome. Among its new proposals, set forth in the proposed FAAP Directive and a Supporting Statement, OFCCP would loosen the rules in some notable respects:

  • Require contractors to renew a FAAP Agreement every five years, rather than the current three years, in order to reduce the burden on FAAP contractors;
  • Eliminate the requirement that FAAP contractors undergo at least one compliance evaluation during the term of their agreements. Apparently, this proposed revision means there is a possibility that a FAAP contractor could go without any FAAP audit during the entire five-year tenure of the FAAP agreement. This is interesting and sounds attractive but given the relatively low number of FAAP contractors (currently, 71 contractors, 1,932 FAAPs), we wouldn’t count on this; and,
  • Removal of the requirement that FAAP contractors provide OFCCP with an annual update regarding its FAAP structure. OFCCP would, however, retain the existing requirement that contractors provide OFCCP notice of significant changes to its FAAP structure within 60 days of the effective date of those changes.

Contractors interested in commenting on these and the other proposed changes may submit comments by November 13, 2018 according to the procedures set forth in OFCCP’s Federal Register notice.

For certain, there are positives and negatives to a FAAP structure as compared to a routine establishment-based AAP structure. Any contractor considering a move to FAAPs should carefully weigh the implications for its organization. As always, we are here to assist with any questions you may have.

 

Complimentary Webinar: What You Need to Know About OFCCP’s New Compensation Directive

It’s been a little more than two weeks since OFCCP released its new Compensation Directive.  While we don’t yet have answers to all of the questions surrounding the Directive, we do have thoughts about what will likely change, and what will not, for federal contractors during compliance reviews. Since OFCCP has just released another round of advance notice letters about upcoming audits, time is of the essence to wrap your arms around how the agency will be looking at your pay.

Join me and my colleague, Scott Pechaitis, at 2:00 Eastern on September 19th for a complimentary webinar, as we discuss the implications of the new Directive with one of our Lead Statisticians, Krystal Welland.  Hope you can join us!

Additional Information on OFCCP’s Latest Round of CSALs

As we reported last week, OFCCP has released a supplemental list of contractors who have been selected for audit by the Agency.  In addition to releasing information about the supplemental list of CSALs, OFCCP also published a new FAQ addressing requests for extensions and a supplement to its recently disclosed scheduling methodology.

Request for Extension FAQ

One of the items raised in the GAO review of OFCCP was the rate of untimely audit submissions by contractors.  While looking for alternative ways to ensure contractors prepare the required affirmative action plans, OFCCP has released a new FAQ addressing requests for extensions of time to respond to an OFCCP scheduling letter.   In the FAQ, OFCCP states it will provide a 30-day extension for the submission of supporting data in connection with contractors AAPs if two criteria are met.  The extension will be granted only if:

(1) the contractor requests the extension prior to the initial 30-day due date for the AAPs, and

(2) the contractor timely submits the basic EO 11246, Section 503 and VEVRA AAPs within the initial 30-day period after receiving the Scheduling Letter and Itemized Listing.

To reiterate, the 30-day extension will be granted for supporting data only, not for what OFCCP considers the “basic” AAPs which “contractors are required to maintain and updated annually.”  The FAQ does not explain what constitutes a “basic” AAP.

The FAQ goes on to state failure to submit either the basic AAPs, or the supporting data timely, with the approved extension. “will result in an immediate Notice to Show Cause.”  It also highlights that

[a] procedural Notice to Show Cause for failure to submit AAPs and/or supporting data does not require OFCCP National Office approval.

Finally, the FAQ notes that the extension policy is applicable for reviews scheduled on after September 7, 2018.  Even though OFCCP states it will grant extensions for submissions, with the above caveats, it is also clear they expect contractors to comply with the reporting requirements in a timely fashion.

Scheduling Methodology Supplement

In connection with release of the supplemental CSAL list, and in an effort for continued transparency, OFCCP also released an explanation of the scheduling methodology for the supplemental list.  The impetus behind the supplemental CSAL list was to ensure “the agency’s district and area offices have a sufficient number of available establishments to schedule for compliance reviews until OFCCP releases a new scheduling list.”  According to the Agency, the supplemental list was taken from the “pool” of eligible establishments created from the FY 2018 scheduling methodology.  Establishments with contracts expiring on or before December 31, 2018 were removed from the list.  Notably, and consistent with what we’ve been seeing in the field, OFCCP prioritized establishments with higher employee counts.  OFCCP also applied criteria to regulate the number of establishments, and types of audits (FAAPs and CMCEs) assigned to the district offices.

OFCCP makes it clear this is a supplement to the FY 2018 scheduling list and that a new scheduling list is “expected in early 2019.”

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