In August 2018, the Office of Federal Contract Compliance Programs (OFCCP) issued Directive 2018-04, identifying OFCCP's plan to conduct compliance reviews focused on one of the three authorities that OFCCP is charged to enforce: Executive Order 11246, Section 503 of the Rehabilitation...more
A federal judge in Washington D.C. sent shockwaves through the employer community recently by reinstating a revised version of the EEO-1 report, which is now once again set to gather compensation information from employers across the country. The resurrection of the...more
In the prior article in this series, we concluded that the Supreme Court's pattern or practice holdings in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), provide important guardrails applicable to OFCCP enforcement actions. The Supreme Court has addressed substantive discrimination...more
On the face of it, missing data seems more of a mundane nuisance than a problem. This is particularly the case with applicants' voluntary self-reporting of race and gender data. Based on our experience, however, missing data is one of the most overlooked threats to AAP compliance...more
I have had the privilege in the past few years to contribute an article related to the employment of individuals with disabilities to this publication. I was just about to begin crafting this article when I met one of the participants in our school's Diversity and Inclusion public workshop series who...more
Dana Burns Manager of Corporate Communications, PPL Corporation
Judy Young Director of Diversity and Inclusion Programs, ILR School of Cornell University
Ask the Experts is an online forum where federal contractors and subcontractors are invited to submit questions to industry experts related to OFCCP compliance, affirmative action planning, and equal employment opportunity. Simply register your company on LocalJobNetwork.com to submit a question. Questions and answers will occasionally be featured in The OFCCP Digest for the benefit of all readers.
Question: What is Covered in a Compliance Check?
I'm having difficulty finding out exactly what will be asked for in an OFCCP compliance check. I know that they will request our latest AAP, but is there anything else we should expect? Any guidance is appreciated. Thanks!
Actually, OFCCP will NOT ask for your most recent AAP during a compliance check. According to the compliance check letter that OFCCP has on file with the Office of Management and Budget, the agency will ask to see the following items:
"1. AAP results for the preceding year (41 CFR §§ 60-1.12(b); 60-300.44(f)(4)and 300.80; 60-741.44(f)(4)and 741-80).
2. Examples of job advertisements, including listings with state employment services (41 CFR § 60-1.12(a), § 60-300.80, and § 60-741.80).
3. Examples of accommodations made for persons with disabilities (41 CFR § 60-1.12(a), § 60-300.80and § 60-741.80)."
OFCCP has not done compliance checks for many years, and thus the process is also somewhat new to many at the agency. The current compliance check letter is different than the previous letter in that it asks for "AAP results for the preceding year" for all the laws enforced by the agency. In the past when OFCCP was doing compliance checks, the agency would have asked for a copy of an organization's goals progress report that is associated with its Executive Order 11246 affirmative action plan. A review of "AAP results for the preceding year" is likely to include a copy of the goals progress report, but it is also likely to include the assessment of outreach from the AAPs for individuals with disabilities and protected veterans.
The compliance check is supposed to be an expedited form of compliance review. If you can provide satisfactory versions of the items above to OFCCP, that should end the review.
The OFCCP recently proposed changes to the Scheduling Letter, Compliance Check Letter, and Focused Review Letter for Supply and Service federal contractors. The changes are significant and would require contractors to submit, among others: information indicating whether terminations are voluntary or involuntary, a list of the three largest subcontractors, results of the most recent analysis of compensation systems, availability for each job group by race/ethnicity, and information for every completed month as opposed to the first six months, for those who are six months into their current AAP year. The proposed letters would also now require that all information be submitted in electronic format.
More notably, the proposed changes provide a glimpse into the volume of audits that OFCCP is planning to conduct in future years, as stated in the accompanying Supporting Statement OFCCP submitted.
The proposed scheduling letters are currently with the Office of Management and Budget (OMB) and the public is invited to provide comments by June 11.
OFCCP Proposes Compliance Checks for Construction Contractors
The OFCCP proposed the use of two Compliance Check audit letters for construction contractors - one for direct federal contracts and another for federally assisted contractors. It posted its recommendation in the Federal Register and is requesting feedback from the public. Comments can be electronically submitted via the Regulations.gov website and must be completed by June 7, 2019.
EEO-1 Pay Data Collection
On April 3rd, the Equal Employment Opportunity Commission (EEOC) informed the U.S. District Court for the District of Columbia that it plans to require employers to turn over pay data, broken down by race, gender and ethnicity, by September 30, 2019. This follows an order issued by the federal court requiring EEOC and OMB to determine by April 3, 2019, whether pay data information will be required in the current EEO-1 reporting period, which opened on March 18 and runs through May 31. In its response, EEOC will be using a third party to collect the Component 2 pay data. The judge has set an April 16 hearing on the matter.
DOL Proposed Rule to Revise Joint Employer Status Under FLSA
The U.S. Department of Labor (DOL) has announced a notice of proposed rulemaking in relation to the joint employer portion of the Fair Labor Standards Act (FLSA). This proposal would seek to clarify the responsibilities of an employer and joint employer where each are responsible for an employee's wages. This would be the first meaningful revision since 1958 as the DOL proposes a four-factor test to consider if the joint employer has power to:
hire or fire the employee;
supervise and control the employer's work schedules or conditions of employment;
determine the employee's rate and method of payment; and
OFCCP announced that the annual Vietnam Era Veterans' Readjustment Assistance Act (VEVRAA) hiring benchmark has been adjusted to 5.9 percent. The new benchmark is effective as of March 31, 2019 and reflects the national percentage of veterans in the civilian labor force. This is the fifth consecutive year in which the benchmark has dropped and the 0.5 percent dip is the largest one-year change since it was established in 2014.
OFCCP Releases the Corporate Scheduling Announcement Letter (CSAL) List for FY 2019
The Corporate Scheduling Announcement Letter (CSAL) List for FY 2019 has been released by OFCCP and contains 3,500 federal contractor establishments OFCCP will be scheduling for a compliance audit. Those organizations on the list may receive Scheduling Letters from OFCCP as early as May 9, 2019. Upon receiving the scheduling letter, the will have 30 days to submit their Affirmative Action Program (AAP) and supporting documents. The list includes five types of reviews:
The 45th National AAAED Conference, "Moving Beyond Diversity Towards Equity and Inclusion," takes place June 11-13, 2019, in Indianapolis, Indiana. The conference is designed to meet the needs of any person classified as an EEO/AA or diversity professional. You can check out the 2019 agenda to see the list of great speakers and the insights you can take away.
The opinions expressed in this newsletter are the opinions of the individual author(s) and do not necessarily reflect the opinions of LocalJobNetwork™. The information appearing in this newsletter is meant to provide the reader with a general understanding of topics relating to OFCCP compliance requirements and is not legal advice. If you are seeking legal advice to address OFCCP compliance issues or requirements, you should consult an attorney. LocalJobNetwork™ expressly disclaims all liability with respect to actions taken or not taken based on any or all of the contents of this newsletter.