On Friday April 12th, the Office of Federal Contract Compliance Programs (OFCCP) published its proposed new scheduling letters for Service and Supply audits, Compliance Checks, and Focused Reviews. These proposed letters appear to follow a current of the agency to move further left in the enforcement of the OFCCP regulations. 
Service and Supply Scheduling Letter
With respect to the normal Service and Supply scheduling letter itemized listing, OFCCP is moving away from the decades long approach of setting goals for each minority category. In other words, contractors would be required to provide the specific racial categories of employees in the job group analysis, availability determination, setting of placement goals, and analysis of progress toward prior year goals.
Next, OFCCP wants copies of the compensation analysis that contractors perform in audits. These analyses are considered confidential and performed under protection of client/attorney privilege. OFCCP would likely deny the confidentiality of the analysis since the regulations require contractors to perform the analyses. In other words, if OFCCP has copies of how contractors conduct their analyses, they can critique and claim they were inadequate whenever indicators of disparity arise. It is a heavy-handed approach to ensure contractors always lose disparity claims. It also is following Director Leen’s pronouncement that organizations should have a union-like, transparent approach to compensation.
Contractors, would, if more than six months into a plan year, provide six months plus each additional month past the current year for data (year-to-date date). What is the use of the data other than goal achievement? Many times, OFCCP combines plan data plus the six months data to prove hiring/promotion/termination discrimination. In effect, OFCCP could do a two-year AAP audit.
With respect to promotion date, OFCCP wants the pool of those eligible for promotions and those who applied as well. A non-competitive promotion has a 1:1 applicant pool. It could lead to an OFCCP review of eligibility for promotions as well as timing for promotions and a new approach to prove promotion discrimination.
With respect to termination data, OFCCP is requesting terminations be identified as voluntary and involuntary. A number of audits today request data in that format, even if there is no indicator for the overall termination.
In addition, OFCCP wants information as to the three largest subcontractors participating on a federal contract. That could be an impossible task for many contractors. For example, how would an Auto OEM identify whose parts are more used in a vehicle sold to the government. This approach was tried many years ago. It would be more practical if OFCCP would return to the listings in the EEO-1 report of those employers identifying themselves as federal contractors and comparing those to the federal contractor database. Those not listed could be presumed to be subcontractors.
Finally, OFCCP is stating it is an enforcement agency, not compliance anymore, and as such, any other findings of violations (e.g. wage and hour, etc.) will be submitted to the appropriate “enforcement” agency. This is a continuation of the previous Democratic administration’s philosophy to essentially "get" employers.
Compliance Checks Scheduling Letter
With Compliance Check Letters, OFCCP is still requesting information on accommodations made and listings with the state workforce agencies. However, the OFCCP is now asking for a copy of the AAPs for the Executive Order 11246, Section 503 of the Rehabilitation Act, and the Vietnam Era Veterans’ Readjustment Assistance Act. Currently, contractors are required to submit only the AAP results for the prior year for each AAP.
OFCCP will also require contractors to submit “[r]equests made for accommodations for persons with disabilities, whether the requests were denied or granted.” Previously it was just examples of accommodations. Given the Agency’s heightened interest in Section 503, the expansion of this request is expected.
Focused Review Scheduling Letter
Currently, OFCCP’s focused reviews are restricted to one of the areas that it enforces: EO 11246, Section 503, and VEVRAA. Starting in September, OFCCP is planning on starting the 503 Focused Review. In the focused review, OFCCP states it is requiring a copy of the AAPs for the Executive Order 11246, Section 503 of the Rehabilitation Act, and the Vietnam Era Veterans’ Readjustment Assistance Act. OFCCP stated in a footnote that “OFCCP will not conduct a review of the Executive Order 11246 AAP during a Section 503 [or VEVRAA] focused review. This AAP will only be used to help OFCCP understand the contractor’s organizational structure, confirm Section 503 job groups, and understand generally how the Section 503 [or VEVRAA] compliance strategies fit with the contractor’s other affirmative action efforts. OFCCP will not analyze data contained in the Executive Order 11246 AAP to look for discrimination based on sex or race or ethnicity.”
OFCCP will likely conduct adverse impact analysis on disability and veteran hiring, promotions, terminations. OFCCP is requesting submission of “[a]pplicant and employee level information on self-identification maintained for individuals with a disability,” and to provide “[a]pplicant and employee level employment activity data for all applicants and employees” for the AAP year. If more than six months into the current year, the data for all completed months of the current year will be required.
OFCCP will also require compensation data to conduct analysis. It is unclear whether the analysis would stay focused on disability and veteran employee pay or would be a standard all-encompassing pay analysis.
Conclusion
Under Director Leen, OFCCP has made a decided turn left. In a recent webinar with the Office of Disability Employment Policy (ODEP), OFCCP Director Leen stated that he would expect employers:
- Would price specifically for the job (essentially be like the government system), not the person
- Have a Chief Disability Officer
- Ensure that all accommodations are centralized
- Ensure all websites meet Section 508 requirements with closed captioning, etc.
In a recent townhall in New York City, Director Leen overreached by telling law firms that they need to “get their house in order” when it comes to their diversity and inclusion practices. OFCCP is appearing to take the role the previous administration wanted to take: “employer gotcha.” The end result may be that OFCCP is ratcheting up as an enforcement agency and will likely have the same problems the previous administration had: untrained or poorly trained compliance officers and lengthening of audits.