The Office of Federal Contractor Compliance Programs (OFCCP) is revamping its previous approach to contractor audits from a “gotcha” approach to a more cooperative approach. Most recently, and as reported in EPTW, OFCCP has made the selection process more transparent by publishing the approach of establishing the list of contractors that would be subject to audit in the coming year. It is expected that OFCCP will schedule approximately 1,000 audits in Fiscal Year 2018, including Supply and Service, University, Corporate Headquarters, and Functional AAP audits. The focus of audits will still be pay disparity. What else is the agency doing to correct its course?
As a follow-up to a 2016 Government Accountability Office (GAO) report and subsequent Compliance Assistance Town Halls in the fall of 2017, OFCCP released its “Town Hall Action Plan.” OFCCP is pursuing a more open and transparent approach to audits. As a product of this approach, the OFCCP is creating three guides for contractors: a Supply & Service Technical Assistance Guide, a Construction Technical Assistance Guide, and an Academic Institutions Technical Assistance Guide. OFCCP’s goal is to provide the responsible personnel within a contractor’s organization a user–friendly product that will help them implement their obligations under the laws OFCCP enforces.
OFCCP is also expecting to redesign the Mega Construction Project Program webpage, launch new tools for compliance, update the New and Small Technical Assistance Guide, develop new infographics on the internet applicants, and update the OFCCP At A Glance brochure. OFCCP is planning, based on the 2019 budget justification, to ramp up the Mega Construction Project audits (at least $25 million funding lasting over one year or more).
The focus of the agency will be on compliance assistance for contractors. In 2019 OFCCP is planning to build out its help desk calling system. OFCCP is also adding a Contractor Online Community of Practice (COP), so that contractor and audit best practices can be freely shared through an online tool. It should be noted that the agency can only select contractors for audit through a complicated process. No phone call or compliance assistance will trigger an audit.
OFCCP is also ensuring that no Conciliation Agreement (CA) can be issued without a Predetermination (Pre-D) letter (Directive 2018-01 issued February 27, 2108). This approach seemed to have been abandoned by the agency in the past, and contractors had little idea as to what the Compliance Officers (COs) were looking for in an audit. Many times, a CA was sent that surprised the contractor being audited. Although a Pre-D has to be approved by the regional solicitors’ office and then reviewed again by the national office, it is unclear as to what actual guidelines they will use to make determine that a Pre-D is appropriate. Even though a Pre-D letter seems like an equitable solution to lack of communication, once issued a CA would follow as par for the course.
Many groups, including the National Industry Liaison Group, have requested OFCCP to be more transparent during the audit and have COs specifically identify the issues, which may be easily resolved without escalation. The agency addressed those concerns by stating that it will develop policy guidance for creating more transparent identification of violation indicators, explaining the basis for a supplemental data request, and conducting a meaningful compensation self–assessment. Further, the agency will develop a document entitled What Contractors Can Expect. This "Bill of Rights" style document will outline certain OFCCP principles that contractors can expect during an engagement with OFCCP.
To give teeth to the agency’s change of approach, OFCCP is reviewing and will update its internal training program, a major issue raised by the GAO report. The agency is looking at creating a certified training system to update its CO’s skills, knowledge, and abilities. The agency is conducting an assessment of the current training program, determining and assessing the skills gap of existing training staff. They will train to address those gaps, as appropriate, and standardize procedures for the development of training courses. They will issue updated agency guidance as required, adopting a competency model that clearly identifies the skills, knowledge, and abilities that all compliance officers should possess. According to its 2019 Budget Justification, OFCCP plans to obtain third-party accreditation for the training program from the International Association for Continuing Education and Training (IACET).
Moreover, OFCCP is exploring reviving the ombudsman program. This could bring an impartial and independent perspective to attempts to resolve communication and trust issues, as well as certain problems with pending reviews.
The agency is also reviewing opportunities to reintroduce award programs for contractors with best practices in affirmative action. The agency recognizes that awards and other recognition programs may incentivize compliance. Although the details are not yet finalized, it is expected that any contractor or contractor location up for an award will have to successfully complete an audit and should not have problematic EEO or other charges pending (e.g. OSHA or FLSA, etc.).
Most recently, OFCCP introduced one item on the spring regulatory agenda entitled “Affirmative Action and Nondiscrimination Obligations of Federal Contractors and Subcontractors: TRICARE and Certain Other Healthcare Providers.” This proposed regulation will likely continue the exemption of Tricare providers from EO 11246 obligations.
Finally, OFCCP will encourage the use of apprenticeship programs by contractors to create a pipeline of diverse and qualified talent. If that pipeline is created, maintained, and used correctly, an apprenticeship program may help federal contractors meet their outreach, recruitment, and equal employment opportunity requirements. OFCCP is reviewing how to build in apprenticeship programs as best practices for contractors.
Lastly, it should be noted that Bradley Anderson, the Midwest Regional Director, and Janette Wipper, the Pacific Regional Director, have both left the agency. Brad Anderson left to become the District Director for the EEOC in Birmingham, AL, and Janette Wipper was appointed as chief counsel at the California Department of Fair Employment and Housing. No replacements have been named in their place as of this time.
Source: OFCCP