On Friday, March 8, The Office of Federal Compliance Programs (OFCCP) opened the Section 503 Focused Review portal. The Focused Review derives from Directive 2018-04 which states that OFCCP will direct that “a portion of future scheduling lists include focused reviews as to each of the three authorities that the Office of Federal Contract Compliance Programs enforces - the E.O., Section 503, and the Vietnam Era Veterans' Readjustment Assistance Act (VEVRAA) - as described in 41 C.F.R. § 60-1.20, 41 C.F.R. § 60-300.60; 41 C.F.R. § 60-741.60; and the Federal Contractor Compliance Manual (FCCM) at lA00.”
Further, the Directive states that the process for the Focused Reviews would be that “OFCCP would go onsite and conduct a comprehensive review of the particular authority at issue. For example, in a Section 503 focused review, the compliance officer would review policies and practices of the contractor related solely to Section 503 compliance. The review would include interviews with managers responsible for equal employment opportunity and Section 503 compliance (such as the ADA coordinator) as well as employees affected by those policies. OFCCP would also seek to evaluate hiring and compensation data, as well as the handling of accommodation requests, to ensure that individuals with disabilities are not being discriminated against in employment.”
It is anticipated that there will be 500 F503 Focused Reviews during the current fiscal year. These focused reviews would be conducted at contractors’ headquarters. Any headquarters that were reviewed in the past four years should not be subject to this type of review. OFCCP will not schedule contractors for other compliance reviews while undergoing a Section 503 Review.
A specific scheduling was developed and approved by the Office of Management Budget (OMB) in November 2018 and can be found here. The letter was only approved until June 30, 2019, but OFCCP will likely use it until the scheduling letter (with likely no changes) is approved again.
There are 12 items requested on the scheduling. The first three items pertain to the contractor’s current AAP.
The first item is a copy of the current AAP. OFCCP states in FAQs that the request of the AAP is for informational purposes only. Specifically, “OFCCP will not conduct a review of the Executive Order Affirmative Action Program (AAP) during a Section 503 focused review. While OFCCP will request the EO AAP as part of the Section 503 focused review, the EO AAP will only be used to help the OFCCP compliance officer get a clearer picture of the contractor’s organizational structure, confirm Section 503 job groups, and understand generally how the Section 503 compliance strategies fit with the contractor’s other affirmative efforts.”
The second item is the 503 AAP. Although with a standard compliance review, the 503 and VEVRAA AAP is combined and submitted, only the 503 aspects will be reviewed. Items four through seven are all subparts of a 503 plan. The agency requires (if more than six months into a plan year) an additional six months of applicant and hire data specifically showing disability percentages (6) and utilization by job group for the six months (7). Items four and five are effectiveness of outreach and recruitment (4) and demonstrating the auditing of these efforts (5).
Item three is a copy of Job Group analysis. Why this part is called out specifically is unclear, since the 11246 AAP is being provided and it is required in that AAP.
Items eight and nine are standard. Item eight is three years EEO-1 reports, and Item nine is a copy of collective bargaining agreements, if any.
Item 10 is a copy for an accommodation policy, if any, as well as a request of any accommodations made (although no time limit is specified). Item 11 is an assessment of personnel processes (which is even unclear in the current AAP itemized listing what is needed for that aspect of the audit). Item 12 is a job assessment of mental and physical qualifications, which is shown through copies of job descriptions.
Although the audit is allegedly limited to 503 regulations, OFCCP has the opportunity to open up the review to be further reaching. For example, in the FAQs OFCCP states “OFCCP will not require the submission of personnel activity data other than the data described in 60‐741.44(k) at the onset of a Section 503 focused review. However, during the course of the review, OFCCP may request and review this information. OFCCP may request compensation and promotion data for individuals who identified as having a disability, are known to have a disability, and/or employees who requested a reasonable accommodation. Additionally, based on a review of data in response to 60‐741.44(k), OFCCP may request additional applicant flow data for job groups that had applicants with disabilities.”
There is a bit of controversy in the way the audit will be conducted. OFCCP will come on site and has stated in meetings that they will want to interview the ADA Coordinator and likely individuals with disabilities self-identified in the workforce. It has been argued by the contractor community that many smaller contractors do not have a designated “ADA Coordinator,” and it will be intrusive on employees who had self-identified as disabled but do not consider themselves “disabled” because they can do the job. Further, it is questionable whether OFCCP has the authority to cite a contractor if it does not have an ADA or an Accommodation policy.
The Focused Reviews will begin sometime after the OFCCP releases its scheduling lists in its FOIA library. At a minimum, contractors should be asking employees at headquarters sites to update any demographics before the audits begin.