The Office of Federal Contract Compliance Programs (OFCCP) issued two more directives on September 18, 2018, promising transparency and communication with contractors.
In Directive 2018-08, OFCCP touts its efforts this year to increase transparency, citing six different OFCCP initiatives, and goes further by seemingly extending transparency to all stages of a compliance evaluation. OFCCP outlines requirements for its staff to follow in the scheduling, pre-desk audit, desk audit, pre-onsite, offsite analysis, and conciliation stages of an OFCCP audit. This is yet another response to the criticisms that were lodged against OFCCP in the Government Accounting Office's (GAO) 2018 report.
Some of the information in the Directive is not necessarily new, such as the commitment to publish supply and service scheduling methodology and to delay scheduling 45 days after corporate scheduling announcement letters (CSALs) are issued. OFCCP also references its recent move to allow contractors an extension to provide support materials assuming the "basic EO 11246, Section 503 and VEVRAA AAPs" are submitted timely and the contractor follows other procedures outlined in the recently announced FAQ.
Some of the more interesting commitments from OFCCP include:
- OFCCP reserves discretion to grant extensions to timely submission of affirmative action programs (AAPs) in extraordinary circumstances.
- Failure to submit timely AAPs and support data will result in an immediate issuance of a show cause notice (OFCCP noted this would not "require OFCCP National Office approval").
- The issuance of a show cause notice will not necessarily mean a mandatory conciliation agreement, which is a departure from previous policy.
- OFCCP will limit its desk audit review to the information sought by the Scheduling Letter and Itemized Listing and will not request information for such things as data to refine indicators, employment applications, and manager interviews until the desk audit has been completed.
- OFCCP will close audits quickly where there are no indicators of discrimination or other evidence of violations, noting an ideal time to do so would be 45 days after receiving a complete submission.
- Any requests for supplemental information must include the "basis for the request, be reasonably tailored to the areas of concern, and allow for a reasonable time to respond."
- OFCCP will include a high-level summary of preliminary indicators of discrimination in an onsite confirmation letter and released a sample letter.
- Contact contractors "ideally at least once every 30 days" with status updates
- Collaborate with contractors during the conciliation process, including sharing factors used to calculate back pay, among other information, and offering to include Branch of Expert Services or the Office of the Solicitor staff in these discussions.
- Provide apprenticeship programs and "proactive corporate-wide solutions" as part of the compliance effort to have wider reach for workers and applicants
Continuing its efforts for transparency and responding to the GAO's findings that OFCCP "[s]takeholders and contractors fear that OFCCP for assistance would call attention to them and possibly make them a target," OFCCP announced in Directive 2018-09 a new Ombud Service. The directive acknowledges that OFCCP does not currently have an independent mechanism for external stakeholders to provide feedback and recommendations or to share concerns about a particular open matter.
The directive is clear that the ombud will not advocate on behalf of a contractor or OFCCP, nor give legal advice or opinions or be involved in compliance evaluations or conciliation efforts. The directive requires the individual who fills this role to:
- Listen to stakeholders about OFCCP matters and areas for improvement
- Promote and facilitate resolution of issues at the district and regional office levels
- Implement resolutions of certain issues at the district and regional offices after stakeholders have "exhausted" these "channels"
- Accept and review matters from the OFCCP National Office
- Refer routine requests for compliance and technical assistance to the OFCCP Help Desk
The ombud will also have the discretion to reject a referral. The National Office is tasked with designating or hiring someone for this role who will report to the career deputy director.
We will keep you apprised of any developments as we learn of them on Ogletree Deakins' Affirmative Action / OFCCP blog.
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