OFCCP Week in Review: August 7, 2017

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OFCCP Week in Review: August 7, 2017

OFCCP Week in Review, Authored by John C. Fox, Candee Chambers & Jennifer PolcerThe OFCCP Week in Review (WIR) is a simple, fast and direct summary of relevant happenings in the OFCCP regulatory environment, authored by experts John C. Fox, Candee Chambers and Jennifer Polcer. In today’s edition they discuss:

2017 ILG National Conference: “We are Glad to Be Here,” Proclaimed the OFCCP

Wednesday of August 2, 2017
Tom Dowd’s words from the heart

On Wednesday August 2, Tom–a career employee serving as the Acting OFCCP Director in the absence of a political appointee–kicked off the ILG National Conference with a genuine and heartfelt message. With a soft tone and humble presence, he spoke to the elephants in the room. They are without leadership, their budget is on the chopping block, a merger with the EEOC is a possibility and none of these things are in his control. Wearing his regular accessory of a traditional Bolo Tie, many of which were handed down from relatives, Tom spoke softly to the mission of the OFCCP and the bigger reason of why we all do what we do: Equal Employment Opportunities. That is what we stand for, that is what we want to see. He stressed the very small numbers of actual Complaints, often as few as 4 per year. Federal contractors outnumber the OFCCP 10-fold. The mission is one of self-monitoring and comes come from a place of employers doing the right thing, not because they fear audit, but because it is how they want to run their business.

Tom introduced the directors from all six regions, all of whom were present. He opened the door for dialogue throughout the conference and encouraged attendees not to be afraid to speak up.

It was a well-received speech gaining a standing ovation. It not only set the tone for a great conference, but it also alluded to the possibility that the agency is perhaps shifting towards a partnership focused on transparency and cooperation, rather than opposition and confrontation.

Time will tell.

Debra Carr ‘Talk Story’ Session

hosted a listening session titled “Compliance Assistance.” It was geared to explore and identify the compliance preferences, needs and specific resources most desired by federal contractors. It was lively and interactive, with a great dialogue between Debra and the audience. Points of discussion included:

  1. Training
    • Internal: Debra explained the agency sought out a consultant to assist in the development of a formal training program for their Compliance Officers (CO’s). They are exploring the concept of a five level curriculum in which CO’s would be required to train every 12-18 months. In addition to classroom training, CO’s would be reviewed by their managers and potentially undergo performance reviews like many do now in the private sector. She realizes there is a long road ahead on that piece, but believes holding managers accountable for the performance of their CO’s would be a key component to ensure what is taught is executed consistently.
    • External: Once the internal training program is formally structured and rolled out, the plan is to execute a formal training for federal contractors as well. On the drawing board is the idea of a national training conference to include accredited courses. Ideally this would be two official training courses held per region, per year. The content would be standardized and identical across the nation and ultimately would result in the formation of an on on-line library of resources. Case studies may be used as well. The idea of getting a “pass” on an audit for a set time frame was discussed and could be a potential reward/perk for employers who successfully complete the training.
  2. Contractor Recognition: Remember the EVE (Exemplary Voluntary Efforts) reward? It was rescinded in 2013, but it sounds like a similar recognition program may be back! Debra wants to see a program that drives change and creates a partnership with the winners. Discussion around what this would look like included: What sort of data could/can an employer include? What would be the time/cost burden to employers? Number of awards – by region/industry/size? Debra explained that winners may be expected to partner with the OFCCP for a period of time. Responsibilities may include: mentoring, videos highlighting the employer’s practices and assisting the OFCCP with training. Winners may be granted photo ops and media exposure as well as a grace period from a future audit.
  3. How does the OFCCP get the audit Scheduling Letter to the correct person at your company? A brainstorm of ideas on how the OFCCP can make sure they send the audit letter to the correct person. If you have ideas, please send them her way or reach out to your ILG to pass your ideas along.
  4. Town Halls: These are happening now! First one to be held in Washington DC in August. Additional cities include Chicago and San Francisco. Go to OFCCP’s website to get on their list serve and stay in the loop.
  5. Digital Stakeholder Engagement Campaign: In the works. This will include targeted emails, text messages, videos and other assistance. Information will be specific to either the supply/service or construction employers.

Finally, there was a very candid discussion on the issue of trust between employers and the OFCCP. Debra said the OFCCP solicited feedback from over 6600 federal contractors on various items and received less than a 3% response. Why? Per the audience…. fear. Some were advised by in-house counsel not to respond. Attendees heard on several occasions throughout the conference that reaching out to the OFCCP for compliance assistance would NOT result in an audit. Still, employers are reluctant to reach out. The solution presented to Debra was to use the Industry Liaison Groups. These are “safe” groups that can speak on behalf of employers across all states and regions. There were over 850 attendees at the National ILG Conference, the groups are alive and well – use them! Debra was very open to this and met with several ILG members after the session to get contact info and seek additional comments on partnership.

 

Developing Strategic Alliances with State Workforce Agencies

Wednesday, August 2, 2017
“Fostering Change: Developing Strategic Alliances with State Workforce Agencies” was presented at the ILG National Conference by Candee Chambers from DirectEmployers, Pam Gerassimides from NASWA and Chris Liakos from Northrup Grumman.

The team educated the attendees and shared details about the National Labor Exchange (NLx) and highlighted the benefits for employers to reach out to their local CareerOneStops (ESDS’s) to build relationships and to help their organizations fill jobs.

  • Chris shared success stories from Northrup Grumman hiring professional-level employees in every state in the country by working closely with local workforce agency personnel.
  • Assistance from these agencies is free to employers and should be utilized to find professional and production labor personnel, including veterans and individuals with disabilities to fill open positions.
  • Discussion also included the 2.3 million jobs that are delivered via the NLx to state workforce agencies, the Veteran’s job bank, the U.S. Chamber of Commerce Hiring Our Heroes job bank and thousands of more sites in addition to local Community Based Organizations allowing Member companies to reach out to resources closest to their office locations.

Employers interested in having their open positions included in the NLx daily feed of jobs can contact their state workforce agencies or DirectEmployers to increase their recruiting opportunities free of charge.

The full presentation can be found here.

 

Victoria Lipnic Stated an August 31st Deadline

Thursday, August 3, 2017
Victoria Lipnic, Acting EEOC Chair, gave the opening day keynote address on day two. Sporting her “fashion forward wristband” from the previous night’s event, Victoria was amusing and straight forward in her address to an audience of upwards of 850. She cut right to the chase, the controversial compensation component of the EEO-1 report. Victoria has been vocal in the past about not supporting this and she informed the crowd that we would know the status of this component before Labor Day, as she too will be going on vacation!

Additional highlights from Vicki included:

  • The ADEA is hitting “middle age” with its 50th anniversary being December 17th. Protecting older workers is more important now than ever as our workforce is continuing to work into their 70’s, many by choice. This is a vibrant and engaged group that should not be overlooked or cast aside. Vicki urged employers to continue to find creative ways to include this demographic in your company. She highlighted how CVSHealth is doing cutting edge things such as a “snowbirds employment plan,” allowing people to work the summers in one state and the winters in another, to mirror their lifestyle.
  • The EEOC seats are being filled. As highlighted in the OFCCP Week in Review: July 3, 2017, Janet Dhillon has been nominated as the new EEOC Chair, pending Senate approval. President Trump nominated Gade to the last vacant slot on the Commission. Side note: Dr. Gade, who has a Master’s and a Ph.D. in Public Administration and Public Policy, is a veteran of the second Iraq War. He lost his right leg in 2005 after an explosion that occurred while he was out on a routine patrol.
  • The EEOC’s General Counsel position remains vacant at this time.
  • Victoria expressed that even during this time of transition, the “core mission and values of the EEOC remain.”

 

What Did the Fox Say?

Friday, August 4, 2017
Breakfast with John C. Fox on the final morning of the conference kicked off with a fun rendition of, “What does a fox say?” and was, true to form–blunt and to the point. “May you live in interesting times,” kicked off his address on the following topics:

  • Could Trump Help ENDA Finally Pass?
    • ENDA (Employment Non Discrimination Act) is a proposed amendment to Title VII that would make employment discrimination based on Sexual Orientation and Gender Identity unlawful. It’s been introduced to the Congress for the last 43 years. Per Fox, this is the best time in the past 43 years for ENDA to pass.
  • LGBTQ Self-ID
    • Legally you can ask, but tread lightly. What will you do with this info any why. Suggestion here – talk to your LGBTQ employees to see what they think.
  • Where the OFCCP is Now
    • Answer: Transition. John highlighted six different forces that are operating to throw OFCCP into this historic transition. John’s PowerPoint presentation can be found here.
  • Making the Case for Affirmative Action
    • Important to emphasize now that “placement goals” are not quotas but rather recruitment targets to which apply “good faith efforts.”
  • What You Can Do/Should Do
    • Get into self-adults and big data mining.

 

In Other News: Senate Confirmed Marvin Kaplan a Member of the NLRB

Wednesday, August 2, 2017
Prior to his confirmation, Kaplan was Chief Counsel of the Occupational Safety and Health Review Commission. Until 2015, he was a Republican staffer for the House Education and Workforce Committee, where he assisted Republicans heavily critical of the NLRB’s actions under former President Barack Obama.

President Trump has also nominated William Emmanuel to be the third Republican Member of the Board. Were Emmanuel to join Kaplan on the Board, he would give the Board a Republican-led majority for the first time since President George W. Bush.

 


THIS COLUMN IS MEANT TO ASSIST IN A GENERAL UNDERSTANDING OF THE CURRENT LAW AND PRACTICE RELATING TO OFCCP. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. COMPANIES OR INDIVIDUALS WITH PARTICULAR QUESTIONS SHOULD SEEK ADVICE OF COUNSEL. Reminder: If you have specific OFCCP compliance questions and/or concerns or wish to offer suggestions about future topics for the OFCCP Week In Review, please contact your membership representative at (866) 268-6206 (for DirectEmployers Association Members), or email Jennifer at jpolcer@directemployers.org with your ideas.

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About the Author

Jennifer PolcerJennifer Polcer, PHR, SHRM-CP, is the VP of Compliance at DirectEmployers Association. Jennifer brings over 15 years of HR experience to the Association, as well as a skilled background in both OFCCP compliance and employment law analysis. In her current role, Jennifer looks to be a resource to Members providing guidance on compliance matters related to Affirmative Action, audit advocacy and additional education surrounding government contractor obligations. Along with her dedicated team, Jennifer manages the relationship with the National Association of State Workforce Agencies (NASWA), and co-manages the National Labor Exchange (NLx)—the nation’s first electronic labor exchange developed as a collaborative effort between employers and state workforce agencies.View all posts by Jennifer Polcer »

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