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Published on Tuesday, August 7, 2018

OFCCP Discusses the Future Direction of the Agency at the ILG National Conference

At the Industry Liaison Group (ILG) National Conference on August 1, Acting Director Craig Leen of the Office of Federal Contractor Compliance Programs (OFCCP) discussed in his keynote presentation the four pillars of OFCCP’s future actions. OFCCP

Under the previous administration, the relationship between OFCCP and the contractor community was contentious at best with a number of cases open for more than 1,000 days.  From the contractor community perspective, these cases seemed to disappear into a black hole, with little to no contact until a Notice of Violations was issued.

David Cohen, CEO of DCI Consulting Group, in a different session discussed that OFCCP was on track to have approximately $17 million in settlements, with compensation discrimination leading these settlements.  He also discussed the issues of how OFCCP conducted their compensation analysis and the inability of federal contractors to determine how OFCCP came up with their discrimination findings.  Mr. Cohen discussed that OFCCP would improperly group job titles together and conduct a pooled regression analysis that would likely come up with false positives.  Thus, cases would last for a long time, and the federal contractor had difficulty understanding the analysis approach.

Acting Director Leen discussed what his expectations were for the agency in the future.  These expectations are embodied in these four areas:  Transparency, certainty, efficiency, and recognition.  He also stated 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.” 

As for transparency and certainty, Acting Director Leen discussed the use of Predetermination Notices (PDNs) before any Notice of Violations (NOV) would be issued, and that any PDN would have to be approved by the National or Regional offices before being issued. Acting Director Leen felt the PDNs would lead to greater transparency OFCCP’s audits.  As for certainty, Acting Director Leen discussed updating FAQs and issuing opinion letters so contractors can better understand their obligations given certain fact circumstances.  In addition, he discussed bringing back the Ombudsman role that would allow federal contractors to contact for help when they feel audits are being conducted unfairly.

As to efficiencies, OFCCP has made a commitment to close 1,000 days and older audits as soon as possible, then work on the 500- to 1,000-day audits, followed by the next longest group of audits.  Approximately 50% of these cases have been closed as of this time.  Further, he discussed an expectation that desk audits should last about 45 days.  Finally, Acting Director Leen discussed that OFCCP is considering bringing back awards that will recognize the best practices of the federal contractor community.

Immediately after the presentation, OFCCP released a document for federal contractors entitled “What Federal Contractors Can Expect.”  This document will likely lead to a Federal Contractor “Bill of Rights.” The two-page document sets OFCCP expectations in the following areas:  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; and Confidentiality.

Acting Director Leen also discussed a certification program for federal contractors.  Although details are scarce, he discussed the current General Services Administration’s (GSA’s) certification process which occurs within the System for Award Management (SAM) registration system.  Acting Director Leen expects the process to be more than a check the box requirement and will have some teeth to it.

In addition, Debra Carr, OFCCP’s Director of Policy, discussed how OFCCP is planning on building the capacity of the compliance officers by developing competencies and training.  By building the skill level of compliance officers, audits should be both more effective and efficient.

These presentations make it clear that OFCCP is entering a new stage for audits and enforcement. It also should be noted that Acting Director Leen is also looking at focus reviews for Section 503 and Section 4212 AAPs.  What that means is not clear at this time.  To attendees at the sessions, it is apparent that leadership wants to make the agency better, more reliable, and value add to the contractor community.

 

Source:  Industry Liaison Group National Conference, August 1, 2018

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