Day two of the 2018 ILG National Conference has concluded and it was another day packed with information and insights for attendees.

Riding the “waves of change”, over the past two days OFCCP and officials from the U.S. Department of Labor Solicitor’s Office as well as the EEOC, have shared their insights, thoughts, and new initiatives and desires for enforcement and compliance.

Yesterday, in addition to releasing the “What Contractors Can Expect” expectations, Acting Director Craig Leen commented on a number of initiatives and “things in the works” in the OFCCP National Office.  As part of his discussion of OFCCP’s four points of focus, Acting Director Leen shared additional details about the Agency’s plans.

  1. Transparency
    • The Agency is exploring the idea of issuing Opinion Letters to address topics on which they get questions.
  2. Certainty
  3. Efficiency
    1. Citing the “unacceptable” length of its aged cases, Acting Director Leen shared the Agency is looking at ways to try to complete desk audits in 45 days.  Acting Deputy Director Marika Litras echoed ta similar commitment to more efficient reviews during her presentation to conference attendees Thursday morning.
  4. Recognition
    • Acknowledging the interest from the contractor community to bring back recognition awards Acting Director Leen shared the Agency is exploring the possibility.

Acting Director Leen also highlighted the Agency’s commitment to 100% compliance to every protected group as part of its responsibility and commitment to all.  As part of this commitment, he shared the Agency is looking to bring back focused reviews to check compliance with Section 503 and VEVRAA -noting they are exploring the possibility that a portion of establishments selected for audit would be subject to the focused reviews.

In his Thursday afternoon break-out session on Leading Practices in Disability Inclusion, Acting Director Leen expanded further on his vision for the focused reviews in the Section 503 space.  Specifically, the reviews would include:

  • an on-site visit
  • interviews with managers and ADA Coordinators to learn about the company’s practices
  • review of accommodation practices

He also shared, that as part of these focused reviews, he would like OFCCP to look into the hiring and promotion practices of the establishment, as well as an evaluation of the accommodation process to ensure it is not discriminatory or retaliatory.

In his impassioned address, Acting Director Leen emphasized

inclusion is good for business  . . . when people feel welcome they succeed.

There is a plethora of information being shared and discussed among presenters and conference attendees and we are looking forward to the Acting Director’s impressions and concluding remarks tomorrow as the conference comes to a close.

It has been a busy morning on the first day of the 2018 ILG National Conference in Anaheim, California.  After a dramatic and moving opening presentation, OFCCP Acting Director Craig Leen gave the morning’s Keynote address.  Echoing the conference’s “Navigating the Waves of Change” theme, Acting Director Leen spoke to the group about the four pinnacles of change the current administration is focused on, which are:

  1. Transparency
  2. Certainty
  3. Efficiency
  4. Recognition

Shortly after his address, in furtherance of this message, Acting Director Leen shared a document entitled “What Federal Contractors Can Expect.”  While not formally titled as such, this is likely what has previously been previewed as the “Contractor Bill of Rights.”  The expectations mirror the concepts and sentiments of Acting Director Leen’s remarks and sets out a commitment from OFCCP that

Contractors seeking OFCCP’s assistance with satisfying their nondiscrimination and equal employment opportunity obligations can expect clear, accurate, and professional interactions with OFCCP’s staff.

Additionally, the two page document sets out the following of expectations from OFCCP:

  • Access to Accurate Compliance Assistance Material
  • Timely Responses to Compliance Assistance Questions
  • Opportunities to Provide Meaningful Feedback and Collaborate
  • Professional Conduct by OFCCP’s Compliance Staff
  • Neutral Scheduling of Compliance Evaluations
  • Reasonable Opportunity to Discuss Compliance Evaluation Concerns
  • Timely and Efficient Progress of Compliance Evaluations
  • Confidentiality

We will be sure to keep you posted about this, and other developments, as we continue to hear more from Acting Director Leen and other OFCCP personnel at the conference. So, as always, stay tuned.

With confirmation from a Department of Labor spokesperson, Bloomberg News is reporting that Ondray Harris will soon be leaving his role as OFCCP Director.  While the reason for his departure was not disclosed, Bloomberg is reporting he will be stepping down from his role at the end of this week.

Bloomberg is reporting Senior Advisor Craig Leen will be serving as interim Director until a permanent Director is named.  If  you remember, prior to Harris’ appointment as Director, there were several reports that Leen himself was going to be named as the Agency head.  Perhaps those reports were not misinformed but simply premature.

The news of Harris’ departure comes just about a week before contractors and OFCCP representatives will gather in Anaheim, California at the 2018 Industry Liaison Group National Conference where Director Harris and Senior Advisor Craig Leen were both slated to speak.  As of this posting Director Harris still appears on the conference agenda.

This is a developing story so stay tuned for updates.

And be on the look out for our daily reports from the ILG Conference.  Hope to see you there!

Early in the Trump Administration, it was proposed to move OFCCP into the EEOC.  Congress subsequently rejected the budget proposal containing the proposed merger and the idea was put to rest.

Not to give up it’s quest to streamline the Administration and propose budget-saving measures, the Administration recently proposed a merger of the Departments of Labor and Education into an umbrella agency to be named The Department of Education and the Workforce.  According to a statement by Mick Mulvaney, Director of Office of Management and Budget:

The federal government is bloated, opaque, bureaucratic, and inefficient. President Trump understands the frustration felt by hard-working Americans… I am eager to work with my colleagues across the executive branch and in Congress to deliver a more trusted and efficient government that puts the American taxpayer first.

According to the statement, merging the departments would better address the “skill needs of American students and workers in a coordinated way.”

The proposal does not specifically address the detailed impact a merger might have on OFCCP, but shows  OFCCP residing in an enforcement arm of the new agency, post-merger. (Page 26 of the Plan)  The merger likely would require Congress’ approval and could take years to implement, thus its future is anything but certain.  As always, we will be sure to report the latest developments.

As we recently reported, OFCCP is evaluating affirmative action obligations for TRICARE providers and expects to publish rulemaking on this front next year.  In connection with this, to allow time for the rulemaking process, as well as to allow time for any potential related legislative action, OFCCP announced it has extended the enforcement moratorium for TRICARE providers.

The current moratorium is set to expire in May 2019.  The new Directive, known as Directive 2018-02, amends the existing TRICARE Directive (2014-01) and extends the moratorium for an additional two years – until May 7, 2021.  In addition to extending its length, OFCCP has expanded the coverage of the moratorium to now cover Veteran Affairs Health Benefits Program providers, in addition to TRICARE providers.

In the Directive OFCCP Director Ondray Harris explains the motivation for expanding to the coverage to include the Veterans programs.

The difficulties active-duty and retired service members and their families have accessing healthcare are well–documented.  OFCCP is concerned that the continued uncertainty over the extent to which the E.O., Section 503, and VEVRAA apply to TRICARE subcontractors has contributed to this difficulty, and that the approaching expiration of the moratorium and accompanying uncertainty further exacerbate the difficulty.

The Directive also reflects OFCCP’s understanding that “Congress may enact legislation affecting this area in the near future”, which the Agency believes further supports extending the moratorium so it may evaluate and address any legislative changes.

We’ll continue to monitor this area for developments so stay tuned for updates.

Today, the Trump Administration released its Spring 2018 Unified Agenda of Regulatory and Deregulatory Actions, which “reports on the actions administrative agencies plan to issue in the near and long term.”

OFCCP has only one item listed on its agenda, entitled “Affirmative Action and Nondiscrimination Obligations of Federal Contractors and Subcontractors: TRICARE and Certain Other Healthcare Providers.”  The description of the forthcoming proposed rulemaking states it will look to revise the affirmative action regulations

concerning the obligations of TRICARE or certain other healthcare providers as federal contractors and subcontractors.  This proposed regulatory action would include limiting and otherwise altering the obligations of TRICARE and other healthcare providers covered by these authorities.

If you recall, in 2014 after a lengthy and complicated battle to establish jurisdiction for TRICARE providers, OFCCP issued a Directive placing a moratorium on compliance reviews for all contractors whose sole source of government funding is TRICARE.  That moratorium is set to expire in 2019.  Not coincidentally, the proposed date for release of this NPRM is April 2019.

No other details about the proposed rulemaking were provided.  As soon as additional information is known we will provide an update so stay tuned for the next chapter of this saga.

In the words of OFCCP, the contractors spoke and OFCCP listened.  OFCCP is also listening to the Government Accountability Office and its detailed review of the Agency.

In response to the GAO’s Strengthening Oversight Could Improve Federal Contract Nondiscrimination Compliance report and on the heels of OFCCP’s Compliance Assistance Town Halls, the Agency has developed a path to address “three general areas of focus:  training, communication and trust” through a Town Hall Action Plan.  OFCCP reports it developed the action plan “consistent with its existing budgetary and human resources” and that that the agency

further expects that this plan will not only respond to the three common themes identified in the town halls in FY 2017, but will also contribute to the agency’s response to recommendations four, five, and six in the 2016 GAO report.

The Plan is founded on three initiatives:

  1. Review and Enhance Contractor Compliance Assistance
  2. Assess and Improve the Quality of Contractor and Compliance Officer Training and Education
  3. Increase Transparency and Communication

Perhaps of most interest to contractors are the issues of transparency, communication and consistency addressed in the third initiative.  The initiate states OFCCP will “create a ‘roadmap’ or written guide to the compliance evaluation process for contractors” which will further its goal of enhancing communications between contractors and OFCCP, improve the transparency in OFCCP’s work, and begin to address trust issues.

In addition to the Agency’s previously-announced renewed reliance on predetermination notices, OFCCP “will develop policy guidance for creating greater transparency around the identification of indicators of a violation, explaining the basis for a supplemental data request, and conducting a meaningful compensation self–assessment.”  This initiative is consistent with recent reports regarding the possible rescission of OFCCP’s controversial Directive 307 regarding audit compensation analyses.

The Town Hall Action Plan also previews what OFCCP is referring to as a “Bill of Rights” titled “What Contractors Can Expect.”  This document, to-be-entitled What Contractors Can Expect, will outline certain OFCCP principles that contractors can expect to exist during an engagement with OFCCP.  These principles are expected to “include, but are not limited to, things such as timeliness, accuracy, communication, confidentiality, and professionalism.”

And the Agency isn’t done listening.  For those contractors who received OFCCP’s survey, you still have time to give your feedback – the deadline to respond is May 4th – let your voice be heard.

We applaud the Agency’s initiatives and look forward to learning more about the details, which we will share as they  become available.

Without much fanfare, the U.S. Equal Employment Opportunity Commission’s EEO-1 Joint Reporting Committee has extended the deadline for filing of this year’s EEO-1 Survey until June 1, 2018.

As a result of modifications to the EEO-1 survey, which have subsequently been postponed, employers initially had until March 31, 2018 to file their 2017 survey.  The extension gives employers an additional two months to file their reports   While much welcomed, the additional time is not unexpected given the changes and clarifications to the reporting process this year.

You can direct questions regarding your EEO-1 filing to  E1.TECHASSISTANCE@EEOC.GOV. 

Bloomberg Law is reporting OFCCP may soon rescind the controversial Directive 307, which has been in place since early 2013, and sets out the Agency’s current methodology for analyzing pay.  In its place, Bloomberg reports OFCCP will direct compliance officers to review compensation based on pay groupings established by the contractor.  If the directive is rescinded and replaced as being reported, this would be the end to what some have deemed a failed experiment at OFCCP and seemingly return the agency to firmer ground for its pay analyses.

We are aware OFCCP Director Ondray Harris and Special Advisor Craig Leen have recently been reviewing and evaluating OFCCP’s approach to compensation.  If issued in the coming days, this would be the second directive issued under Director Harris’ leadership of the Agency.

As soon as we receive confirmation of the rescission and have an opportunity to review any new directive that is issued we will provide an update and our insights.

In another show of transparency, OFCCP has released a detail description of its process for selecting contractors for audit.  The two-page document walks through, step-by-step, the process OFCCP undertook to identify establishments for the “first release of the FY 2018 Supply and Service scheduling list.”  As the release explains, OFCCP is not required to make these disclosures but decided to do so voluntarily.

As a first point to note, description describes this as first release, indicating, not surprisingly, that there likely will be a second round of scheduling occurring later this fiscal year.

The description then moves into detail about how they bucket contractors based on organizational relationship and how the Agency takes into consideration, employee count, contract details and other factors.

Finally, the description notes that once the establishments were identified, they were randomly ordered, uploaded into the Case Management System and, if necessary,

appended to district offices’ lists of unscheduled establishments. OFCCP does not purge unscheduled cases from prior lists before releasing a new scheduling list.” 

This last section explains why contractors may be seeing scheduling letters without first receiving a CSAL.  Because the unscheduled cases are not purged, they remain in the system, and thus might be added to the list, even though they were not newly selected.

As OFCCP continues to provide new and additional information we will be sure to update.