In the Directive released late last week, OFCCP announced its plan to start scheduling focused reviews starting in Fiscal Year 2019.  OFCCP’s fiscal year begins October 1.

Directive 2018-04 directs OFCCP staff to “work towards ensuring that a portion of future scheduling lists, starting with Fiscal Year 2019, include focused reviews as to each of the three authorities that OFCCP enforces,” with the three authorities being Executive Order 11246, VEVRAA and Section 503 of the Rehabilitation Act.

Focused reviews are one of several types of investigative procedures OFCCP is authorized by regulation to conduct.  The types of investigations include:

  • Compliance Reviews which are comprised of a desk audit, an on-site, and, off-site review of records;
  • Off-site Review;
  • Compliance Check; and
  • Focused Reviews

While the Directive provides some details around OFCCP’s anticipated expectations for the focused reviews – including mandatory onsite visits – the Directive does not set out exactly what contractors can expect if selected for a focus review.  Instead, the document directs OFCCP staff “to develop a standard protocol for conducting focused reviews.”  In furtherance of its commitments to transparency and certainty, OFCCP staff is directed to “make this information available publicly in its FAQs prior to the next scheduling list being issued” as well as to develop training for staff and contractors as to the focused reviews.

Interestingly, as part of the Directive’s description of an example Section 503 focused review, it states

OFCCP would also seek to evaluate hiring and compensation data

in addition to its evaluation of accommodation practices to ensure individuals with disabilities are not being discriminated against in employment.  The Directive notes similar approaches will be used to evaluate compliance with VEVRAA and Executive Order 11246.

As a reminder, Directives provide guidance to OFCCP staff and contractors on enforcement and compliance policies or procedures.  As the directives themselves acknowledge “[d]irectives do not change the laws and regulations governing OFCCP’s programs and do not establish any legally enforceable rights or obligations.

We are eager to learn more about what data OFCCP intends to review and how it intends to analyze the information and look forward to understanding the Agency’s protocols for these reviews.

We will be sure to provide more detail and insights as they become available.

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Photo of Laura A. Mitchell Laura A. Mitchell

Laura A. Mitchell is a Principal in the Denver, Colorado, office of Jackson Lewis P.C. She is a member of the firm’s Affirmative Action and OFCCP Defense practice group as well as the firm’s Pay Equity Resource Group. She is also on the leadership team for the firm’s Government Contractor Industry Group.

Her practice is focused on representing government and non-government contractors in OFCCP matters, preparing for and defending OFCCP audits, and counseling employers on issues stemming from OFCCP regulations. Ms. Mitchell personally oversees the development of hundreds of AAPs each year and is intimately involved in the defense of numerous OFCCP audits. She also spends significant time counseling companies in connection with conducting pay equity analyses as well as government contractor employment obligations.

Ms. Mitchell is the editor and a principal contributor of The Affirmative Action Law Advisor blog and frequently presents on pay equity, affirmative action compliance, OFCCP enforcement trends, and government contractor obligations.

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