The follow guest post comes to us from Lynn A. Clements Director, Regulatory Affairs at Berkshire Associates Inc.
As the rest of the world slowed down for summer, Office of Federal Contract Compliance Programs (OFCCP) activity appeared to be speeding up as the agency entered the last three months of its fiscal year, which closed September 30. Here is a mid-year review of the latest audit activities and what to expect in the months to come:
Requests During Audits:
Audits certainly feel different since the agency released revised scheduling documents last Fall 2014. With the agency receiving more detailed personnel and compensation data upfront, the opportunity to find indicators requiring further investigation has also grown. While the drill is the same, the requests for more detailed applicant, promotion, and termination data seem to be growing—with a continued focus on potential steering issues. Requests for interviews with compensation managers and then detailed pay factors for large portions of the workforce remain popular as the agency attempts to wrap its arms around the complex pay systems of many contractors.
After the agency released a sample transitional Affirmative Action Plan (AAP) under the revised Section 503 and VEVRAA regulations, more detailed questions about contractors’ compliance with the new regulations seemed to follow. At this point, many contractors are six months or more into their transitional AAP year, prompting requests for the “six month update data” on disability and Veteran hiring under the agency’s revised scheduling documents. The agency is also consistently asking for more detailed information about contractors’ review of personnel processes, physical and mental job requirements, and their audit and reporting process. We expect these questions to continue to intensify as more contractors enter their first AAP year where full compliance with the 503 and VEVRAA regulations will be expected.
Current Enforcement Efforts:
In terms of enforcement, recent settlements show the agency making good on its promise to focus on federal contractor compensation practices. Since Fall 2014, agency press releases are focusing heavily on steering practices, which, according to OFCCP, often result in reduced compensation on the basis of race or sex. OFCCP also entered into several conciliation agreements based on a contractor’s use of a test that had an adverse impact on protected groups without a proper validation study. However, the agency’s “bread and butter” enforcement continues to be hiring discrimination claims—more often at the entry level but also in the professional ranks. Even in these cases, the agency’s focus on steering issues came through, with press releases alleging contractors “stereotyped” certain jobs as “female jobs” or “male jobs.”
What to Expect:
What can contractors expect in the next few months? Unofficial reports indicate the agency may release another scheduling list soon, although it’s not clear how large the list will be. We also expect the agency to continue its focus on contractor compliance with the new Section 503 and VEVRAA requirements, compensation, and potential steering issues. On the policy side, the Department of Labor released proposed guidance regarding the so-called “Blacklisting” Executive Order, expected to be finalized this year. At the same time, OFCCP continues to move forward with finalizing the proposed Equal Pay Report and revised sex discrimination regulations and construction contractor requirements.
With the changes expected ahead, it’s important to remain up-to-date and informed. Berkshire will continue to monitor OFCCP activities and report on the changes as they become available.
For more information, please contact a Berkshire compliance expert at 800.882.8904, or click here to learn about our leading audit support services.
As Director of Regulatory Affairs for Berkshire Associates Inc., Lynn Clements serves as a strategic advisor on AA/ EEO compliance issues and oversees Berkshire’s audit defense practice. Previously, Lynn served in several senior-level positions at the OFCCP and EEOC, and as a shareholder at a management-side law firm where she advised clients on the full range of employment issues, including large-scale class discrimination investigations.
A frequent speaker to HR professionals of all levels, Lynn has testified before Congress on EEO issues and regularly assists industry organizations, including SHRM and CUPA-HR, in understanding and responding to regulatory proposals. She is a member of the National Association of Professional Women, and is currently Secretary for the Baltimore Industry Liaison Group (BILG). Lynn graduated magna cum laude with a B.S. and B.A from Wilkes University. She earned her J.D. cum laude from Georgetown University. Lynn has been recognized by Chambers USA and as a Maryland Super Lawyer.
