The 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 and Candee Chambers.
October 31, 2016: Do You Know What is Significant about the Date November 3, 2016?
It is the mid-point between the beginning of OFCCP’s 5-year so-called TRICARE subcontractor enforcement “Moratorium” which began May 7, 2014 and will end on May 7, 2019. U.S. Secretary of Labor Thomas Perez first announced the Moratorium via a March 11, 2014 letter he hand delivered to the U.S. House of Representatives Committee on Health, Education, Labor and Pensions to head off an expected bi-partisan vote to codify a statutory exception for TRICARE subcontracting from OFCCP’s three programs. OFCCP then codified the Moratorium in a May 7, 2014 Directive stopping all enforcement actions (i.e. lawsuits and in-progress audits) against TRICARE-only subcontractors
So, there are 2 ½ more years remaining during which OFCCP has committed to exercise its prosecutorial discretion NOT to audit health care providers which have ONLY TRICARE Government subcontracts with the US Department of Defense. TRICARE subcontractors annually receive an estimated $6 Billion in payments for medical services and supplies hospitals and acute care clinics in the United States make available to retired and some active duty U.S. armed forces personnel.
“So, absent further Congressional intervention in OFCCP’s enforcement program of TRICARE subcontractors, OFCCP will re-commence audits of TRICARE subcontractors on and after May 7, 2019 and MAY investigate and enforce non-discrimination remedies as far back as May 7, 2017…six (6) months from now.”
TRIP-WIRE WARNING: TRICARE-only subcontractors now have only six (6) months left after which they become subject to potential OFCCP investigation and review….NOT 2 ½ years. OFCCP’s statute of limitations allows OFCCP to reach back two years prior to the date of OFCCP’s audit Scheduling Letter to hold the contractor/subcontractor accountable for unlawful discrimination. And, remember: OFCCP’s Moratorium on TRICARE-only subcontractor hospitals and clinics causes OFCCP to stand down only on lawsuits and audits. OFCCP has never conceded either a lack of jurisdiction or a lack of compliance obligation operating on covered TRICARE subcontractors during the Moratorium. So, absent further Congressional intervention in OFCCP’s enforcement program of TRICARE subcontractors, OFCCP will re-commence audits of TRICARE subcontractors on and after May 7, 2019 and MAY investigate and enforce non-discrimination remedies as far back as May 7, 2017…six (6) months from now. So, it is time to get many Affirmative Action and nondiscrimination systems in-place. And, it is especially important to review those employment selection systems and Disposition Codes which record legitimate nondiscriminatory reasons for rejection and polish and calibrate those selection systems among clerks and hiring managers pre-screening, interviewing and rejecting candidates who express interest to work. THE CLOCK IS TICKING. Please calendar. Be careful out there! This is where the money is in OFCCP audits!
LIFELINE: DirectEmployers Compliance Team offers training and assistance to construct, test and refine selection systems to properly process and document Offers and rejections for employment to reduce the risk of a 6-figure OFCCP failure-to-hire audit and prosecution. Contact Candee Chambers for additional details.
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 Candee at candee@directemployers.org with your ideas.
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