We hope you were with our large group at OFCCP headquarters or on the phone on Tuesday, April 3, 2018, but if not, here are the highlights of the twoplus hours we spent with OFCCP Director Ondray Harris, Senior Advisor Craig Leen, Enforcement Director Marika Litras and Policy Director Debra Carr:
- Director Harris and Advisor Leen were anxious to communicate that a new day had dawned at OFCCP. “We are here to help employers to comply,” intoned Director Harris to start the Session.
- In what is clearly a major policy initiative of the Trump OFCCP Team, Senior Advisor Leen emphasized OFCCP Director Harris’ desire to “move from more combative situations with contractors to collaborative approaches.” Advisor Leen reinforced the importance to which Team Trump attaches to this initiative by also quickly cataloging off the top of his head (and later during the Listening Session) several new collaborative approaches he and OFCCP Director Harris had designed and had already implemented to reduce the antagonism between OFCCP and Government Contractors including:
- The centralization of decision-making within OFCCP by causing the OFCCP National Office to review, BEFORE OFCCP District Offices issue them, all:
- Pre-Determination Notices
- Notices of Violation; and
- Show Cause Notices
- Instructions to all Regions to engage in “meaningful” conciliation before breaking off negotiations and issuing one of the above Notices;
- Contractor Recognition and Incentive Programs
- NOTE: The new leadership is seeking input from the Government Contractor community on the type of first of their kind “incentives” (other than the Job Training Partnership Act the Congress passed in first term Reagan) the contractor community would like to have to do its duty to comply.
- NOTE: The new Recognition Program is not a dusting off of the old Awards Programs begun in the Reagan Administration and furthered and augmented by all later Administrations until the Obama Administration; it adds a new concept of using Government Contractors as model Contractors to actually teach other Contractors in the use of Best Practices.
- Human follow-up to CSAL letter mailings via OFCCP District Office calls to CSAL recipient establishments;
- Adoption of the 5-year audit moratorium as to the current list of establishments OFCCP identified for prospective audit in its January 31, 2019 CSALs;
- NOTE: OFCCP issued in advance of the DE Listening Session completely revised FAQs (which you can find here) concerning the “5-year rule” since the original OFCCP FAQ was “confusing,” according to Enforcement Director Litras.
- The 45-day delay (to March 19, 2018) in the commencement of OFCCP audits OFCCP identified in the January 31, 2018 CSALs;
- OFCCP training classes for those Government Contractor representatives who wish to learn about OFCCP before OFCCP commences audits of establishments identified in OFCCP CSALs for potential audit.
- OFCCP has the classic challenge of extending the “carrot or using the stick,” according to OFCCP Director Harris. He commented that “the stick is not the best approach.” “The best practice is to encourage employers to comply.” Two areas of discussion about “carrots” bubbled up as to the incentive issue with Director Harris asking “What does it take (for Government Contractors) to invest in the American Workforce?” and “I want to encourage companies to create pipelines and apprenticeships.”
- APPRENTICESHIP TRAINING PROGRAMS: OFCCP Director Harris’ reference to the large (and widening) skills gap in America with some 6 million jobs going unfilled because of the lack of qualified employees to fill them and to the USDOL’s and Director Harris’ identified need for employers to develop and deliver Apprenticeship programs.) NOTE: Director Harris seems prepared to say something substantive about Apprenticeship Programs at his Keynote speech at DEAM18; and
- FAAP PROGRAM: Policy Director Carr repeatedly asked DE Members in the audience what incentive or process and procedures they would want to see as to Functional Affirmative Action Programs (“FAAPs”).
- There was repeated discussion about OFCCP’s often “painful, protracted and frustrating” audits and the fact that OFCCP was laying down plans now to reduce the running time for audits to average one year in duration (compare 60 days from start to finish as previously required until OFCCP changed its Regulations in 2000 to lift any time limits…thus leading us to the thousands of audits more than two years aged and many in their 4th or 6th) “We want to do audits better and faster,” said OFCCP Director Harris.
- One DE Member in attendance complained about an “excessive number of audits in a short period of time” noting that his company had received 14 audits in a six-month period up 7X from the 1-2 audits per year his company had regularly experienced in prior years. (These so-called “company-wide” audits have been in vogue at OFCCP for the past 6) Director Harris immediately responded that “We will do something about that.”
- Another DirectEmployers’ Member commented that OFCCP was not consistent in the application of its audit expectations across Regions and this lack of consistency was a problem. Debra Carr responded that she thought that two centralizing actions in progress would help reduce the current lack of consistency:
- First, OFCCP’s plans to develop a certified training program for its investigators would help make OFCCP Compliance Officers more consistent. She predicted that the certified program would be available by the end of calendar year 2019, although she made no prediction as to how long it would take to rotate all of OFCCP’s Compliance Officers and field managers through the training program; and
- Second, Director Carr also explained that her office was seeking to centralize and standardize training throughout OFCCP through her office in Washington D.C. One example of that was the training OFCCP offered to Government Contractors which received CSALs announcing prospective OFCCP audits. (Currently, OFCCP is largely operated and managed through OFCCP’s six Regional Offices which former OFCCP Director Pat Shiu had largely decentralized and had allowed to proceed as they wished in the Obama Administration. For example, Director Carr collected approximately 50 such training presentations from OFCCP offices around the nation and selected what she and her staff thought was THE BEST presentation to then expose to Government Contractors across the country through all OFCCP offices).
Director Harris ended this discussion by saying flatly: “Marika is dedicated to reach a resolution of this (consistency problem).”
- THINGS OFCCP IS WORKING ON:
- Transparency: OFCCP is “looking for a path to move forward”;
- OFCCP is “looking at the pay groups issue,” OFCCP Director Harris emphasized (e. compensation discrimination analyses rely upon comparison of pay among “similarly situated” employees);
- Predictability of OFCCP, especially as to the conduct of audits generally and with particular concern about compensation audits;
- Possible return to the use of Ombudsmen in the Regions to be a path for Government Contractors to vent problems and dissatisfaction;
- How to broaden OFCCP’s presence in the Government Contractor Community beyond the less than 1%, or so, which OFCCP routinely audits (an age-old challenge); and
- “Better communication” to help the audit process and allow Contractors to feel comfortable to come to OFCCP.
- SURVEY QUESTIONNAIRE COMING:
- DirectEmployers’ Compliance Group has compiled an Anonymous Survey Questionnaire as to each of the above-listed six initiatives to which the agency is currently giving further consideration. Please complete this survey so DirectEmployers may provide OFCCP Director Harris and Senior Advisor Craig Leen with constructive suggestions about the new initiatives OFCCP intends to roll out later this year, hopefully shaped and guided by your input. Also, please look for the Survey Responses at DEAM18 in Seattle later this month. Candee Chambers, Jennifer Polcer and John Fox will discuss the Survey Responses as part of their trifecta presentation on Wednesday, April 25 as a special bonus for those who get up early enough to attend the first (of the two) OFCCP Q&A Sessions of the day they will host.
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.
John C. Fox, Esq. is President and Partner at Fox, Wang & Morgan P.C. where he represents companies and tries cases in state and federal courts throughout the United States. Mr. Fox has extensive trial experience, having spent more than 300 days in trial. Mr. Fox was also lead trial counsel in the first of the six wage-hour class actions known to have been tried in California and was lead trial counsel in what are believed to have been the two largest disability law suits in the United States. He is an across-the-board employment lawyer representing management nationwide. Full Bio »