Publication

April 11, 2019Client Alert

OFCCP Announces New Initiatives Impacting Government Contractors

In a continuing effort to increase transparency and learn about contractor concerns, the OFCCP held two town hall meetings this week in New York City. The meetings were advertised as an opportunity for contractors in law and finance to share concerns, and for the agency to learn more about the industry practices. As has become typical, however, OFCCP Director Craig Leen and his staff shared EXTRA information relevant to EVERY federal contractor. In addition, noting that the OFCCP has both enforcement and education missions, Director Leen highlighted the collaborative relationship he would like to have with the contractor community and plans he has for education as well as enforcement.

100% Compliance – AAP Verification of Completion

Since taking the helm of the agency, Director Leen has been clear that the OFCCP will address the Government Accountability Office’s concern that up to 80% of contractors do not have updated AAPs at one or more of their establishments. In the next two to three weeks, the OFCCP will publish requests for comments on two new contractor information requests – one related to obtaining additional information from supply and service contractors and the other related to obtaining verification that AAPs have been completed at every contractor establishment.

Electronic AAP Filing Portal

While it may not be part of the new information requests, Director Leen also stated that the agency is developing an AAP filing portal which will require contractors to upload their full AAPs for each location annually. While Director Leen did not provide a completion date for the portal project, in the past when he has publically disclosed specific agency plans, the new procedures were close to completion.

Transparency

Director Leen made clear that in order to reach his goal of 100% contractor compliance, contractors need to know what the agency expects. The expected transparency will be evident in several ways including:

  • More directives – The OFCCP has issued 11 new directives in the Leen era with more to come, including additional guidance on the agency’s expectations on how contractors can comply with the requirement that they annually analyze compensation.
     
  • Opinion Letters – Within days or weeks, the OFCCP will issue its first opinion letter about a compliance issue. Like DOL Wage and Hour opinion letters, the OFCCP letters will give the contractors who request the opinion a written answer upon which they can rely, as well as providing other contractors with information about the agency’s current thoughts and practices on important issues.
     
  • Best Practice Outlines – In advance of identifying the contractors who will be subject to Section 503 Focused Reviews, the OFCCP developed a Section 503 landing page which provides eight best practices for building an inclusive work place. While not specifically required, these best practices give contractors an idea of areas they should address before their reviews begin. In addition, Director Leen promised that before the on-site portions of the reviews are scheduled in September, the OFCCP also will publish the audit plan which compliance officers will follow during the on-site and the Standard Compliance Review Evaluation Report that the compliance officers must complete about the audit.
     
  • Making all conciliation agreements available on the OFCCP website – Agreements involving monetary remedies have been available for some time, the OFCCP now posts all conciliation agreements, including those with paperwork or procedural violations. Although the public has been able to obtain these agreements through the Freedom of Information Act process, Director Leen believes that having them all in one place aids transparency by allowing contractors to see the issues on which the agency is focusing, and if deficiencies are found in their own compliance reviews, contractors can confirm that they are being treated comparable to other contractors with the same issues. Although not specified by Director Leen, this practice should also help end a common contractor complaint – that different regions of the OFCCP often require different remedies, policies, and procedures, making it difficult to manage a multi-location business.

New Focused Review –Promotion Practices

The OFCCP is already on record that the next CSAL (which historically has come in August or September) will include 500 VEVRAA focused reviews. In the meetings this week, Director Leen announced another type of focused review, auditing the promotion practices of selected companies, likely to begin in the next government fiscal year. Although he did not indicate how many of these promotion practices reviews would be conducted in the first wave, he did make clear that a significant portion are likely to be reserved for contractors in law, finance, and higher education – places where women, women of color, and individuals with disabilities make up a small percentage of the higher levels of the organization. Tech companies “may” also be targets of the promotion reviews. The OFCCP is particularly interested in how an organization’s approach to parental leave policies and return from leave practices may impact the career paths of women and individuals with disabilities, including whether women who take these leaves are then steered away from the partnership track, and how anyone, including men who take leave, are reintegrated into their jobs once they return to work. The agency also is interested in whether billable hour expectations or other individual production measurements are adjusted in years that individuals take leave.

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