On Monday, the U.S. Senate confirmed Marty Walsh as the Secretary of the U.S. Department of Labor under President Biden.  Secretary Walsh will, of course, also be newly-appointed OFCCP Director Jenny Yang’s new boss.  While we have anticipated a change in OFCCP direction under Director Yang, the changes, thus far, have been limited, perhaps because she was waiting for Labor Secretary’s confirmation.

In an interview with Bloomberg News, Director Yang has recently confirmed that pay equity will be the Agency’s top priory and that she disagrees with the ALJ’s decision in the Oracle pay discrimination case regarding appropriate pay equity analysis methodology; she has moved forward with AAP verification; and, perhaps most significantly to date, cancelled all the focused reviews scheduled by the prior OFCCP administration.

While numerous questions remain about the state of OFCCP under Director Yang, one our our first questions, and that of contractors, is if, and when, OFCCP will issue a new Courtesy Scheduling Announcement List (CSAL).  OFCCP has historically issued new CSALs in the fall and in late-winter or early spring.  Currently, OFCCP is working to complete the establishment audits from the March 2019 CSAL and the September 2020 update.   Secondary, to that is the looming question of whether federal contractors with cancelled focused reviews are simply “off the hook” or might OFCCP essentially issue a new CSAL converting some or all of those focused reviews to deeper-dive establishment reviews?  Those contractors who found themselves with Focused Reviews “erased” from the scheduling list are likely best served by anticipating audits in the near future.

On the topic of AAP verification, there is a question as to whether OFCCP will seek to use the portal for data collection at some point in the future.

In the area of pay, we are starting to see some OFCCP offices looking more into the issue of  “intersectionality” – potential discrimination based on the intersection of an individual’s race/ethnicity and sex:  pay or other discrimination against Black women; Hispanic men, etc.  Will intersectionality analyses become the norm under the current OFCCP administration?

As with any turnover in OFCCP administration, there will be change.  Stay tuned to our blog for updates on these and other changes OFCCP may now be poised to begin implementing.

Tags: AAP Certification, AAP Verification, Courtesy Scheduling Announcement Letters, CSAL, Focused Reviews, OFCCP, OFCCP Director Jenny Yang, Office of Federal Contract Compliance Programs, U.S. Department of Labor Secretary
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Photo of Laura A. Mitchell Laura A. Mitchell

As co-leader of the firm’s ESG group, Laura Mitchell partners with her clients to evaluate, set, achieve and monitor their organizational culture and human capital goals. She focuses her practice on data analytics, including pay equity and other employee analytics, working side-by-side with…

As co-leader of the firm’s ESG group, Laura Mitchell partners with her clients to evaluate, set, achieve and monitor their organizational culture and human capital goals. She focuses her practice on data analytics, including pay equity and other employee analytics, working side-by-side with employers to build programs that benefit employees and create a stable, high-functioning workplace. Understanding that an inclusive, values-based culture provides a crucial competitive advantage in the modern workplace, Laura enjoys counseling companies on the development of proactive and equitable pay and diversity practices.

In Laura’s version of the reimagined workplace, attention to human capital issues, especially DEI and pay equity, would be the rule rather than the exception nationwide and she works with companies across all industries—both new and well-established multi-national organizations of all sizes—to realize this vision for her clients’ ongoing success. She helps clients understand all issues across the spectrum of their journey, helping to establish regular analyses as well as counseling organizations on implementation and compliance obligations, where applicable. Committed to putting her clients’ organizational goals first and foremost, Laura views herself as an extension of her clients’ team, responsible for providing proactive guidance and engaging in transparent, ongoing communication.

Laura also represents companies in OFCCP matters, preparing for and defending OFCCP audits, and counseling employers on issues stemming from OFCCP regulations. She personally oversees the development of hundreds of Affirmative Action Plans for clients each year and is intimately involved in the defense of OFCCP audits. Her approach to compliance is one of facilitation and conciliation while simultaneously advocating in the best interests of her clients.

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