Federal contractors have something to be optimistic about with a 2018 shift in leadership and priorities at the Office of Federal Contractor Compliance Programs (OFCCP).
At the start of the year, President Donald Trump appointed Ondray T. Harris as OFCCP director and Craig Leen as senior adviser to the OFCCP. Both men come from managementside private practices. Harris pledged a more transparent and collaborative OFCCP, and worked at that until he resigned in July. Leen took over as acting director and deputy director.
To further that goal, the OFCCP issued nine directives in 2018:
Directive 2018-01 (February 27), Use of Predetermination Notices (PDNs): Requires OFCCP to issue predetermination notices before a notice of violation is issued and to provide the contractor with 15 days to respond.
Directive 2018-02 (May 18), TRICARE Subcontractor Enforcement Activities: Extends the current moratorium on TRICARE subcontractor audits for health care institutions. However, the directive does not change the requirement to have a written affirmative action program.
Directive 2018-03 (August 10), Executive Order 11246 §204(c), religious exemption: Aims to remind compliance officers of their duty to protect religious freedom, citing to recent Supreme Court cases as well as executive orders issued by Trump. It should be noted that Executive Order 11246 prohibits discrimination on the basis of religion, but also prohibits discrimination on the basis of sexual orientation and gender identity. However, the directive underscores certain guiding principles in relation to the rights of people and institutions to practice their religion without fear of infringement by the federal government, suggesting a balance tipped in favor of religious freedom.
Directive 2018-04 (August 10), Focused Reviews of EO 11246, §503 and VEVRAA (Vietnam Era Veterans Readjustment Assistance Act): Provides for on-site reviews focused on one of three issues, Executive Order 11246, Section 503 or VEVRAA.
Directive 2018-05 (August 24), Analysis of Contractor Compensation Practices During a Compliance Evaluation: Revamps guidance on compensation investigations and enforcement and is accompanied by an FAQ on the new directive. This is the third time in the last 10 years OFCCP has revised its compensation guidance. The directive reiterates that OFCCP will continue to rely upon statistical analyses of compensation differences, considering a twostandard deviation or greater as significant, but noted that it will also rely upon anecdotal evidence of discrimination. The OFCCP will be less likely to pursue a case where the statistical data is not supported by non-statistical evidence of discrimination.
Directive 2018-06 (August 24), Contractor Recognition Program: Recognizes contractors with highquality and high-performing compliance programs and initiatives.
Directive 2018-07 (August 24) Affirmative Action Program Verification Initiative: Requires contractors to certify their affirmative action program compliance to ensure contractors are completing the annual plans and target for audit those who are not in compliance. This guidance underscores the importance of having a written affirmative action plan.
Directive 2018-08 (September 19), Transparency in OFCCP Compliance Activities: Outlines expectations for audits and investigations to include an instruction to compliance officers to close audits at the desk audit stage within 45 days where there is no indication of violations. Significantly, the directive provides that during conciliation, the OFCCP is required to provide contractors with source data, factors used to calculate back pay and a summary of anecdotal evidence and non-statistical findings.
Directive 2018-09 (September 19), OFCCP Ombud Service: Provides an ombud service in the national office to facilitate the fair and equitable resolution of specific types of concerns raised by OFCCP external stakeholders such as contractors and subcontractors, contractor representatives, industry groups, law firms, complainants, worker rights organizations, and current and potential employees of federal contractors and subcontractors.
The OFCCP in 2018 also began mailing corporate scheduling announcement letters (CSALs) to federal contractors and subcontractors for fiscal year 2018, with an initial 1,000 CSALs mailed in February and another 750 mailed in September. The letter serves as a courtesy notice to a contractor that one or more of its establishments may be reviewed.
The OFCCP also issued guidance in September of 2018 on requesting extensions. Under the new guidance, OFCCP will provide a 30-day extension for supporting data related to the EO 11246, VEVRAA and Section 503 AAPs, but will not allow extensions to submit affirmative action plans. In addition, the request for an extension must be made prior to the initial 30-day due date to submit the affirmative action plans. The extension is contingent upon whether the contractor submitted the affirmative action plan within 30 days of receiving the scheduling letter.
The OFCCP appears more focused on efficiency and transparency. However, contractors should not be asleep at the wheel. The Trump OFCCP has made it clear that it expects government contractors and subcontractors to meet their obligations under EO 11246, VEVRAA and Section 503 to have written affirmative action plans. It is also clear that contractors will not be given an extension to submit them in the event of an audit. Contractors must ensure that they are meeting all of their other obligations under EO 11245, VEVRAA and Section 503.
Our Employment Practice Group
works with federal contractors and subcontractors on the development of affirmative action programs and OFCCP audits. Please contact me
or any member of our group for assistance.
Back To Top