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, Candee Chambers and Jennifer Polcer. In today’s edition, they discuss:

 

 

Wednesday, June 6, 2018: VA Mission Act Signed Into Law

Congress and the President codified the Obama OFCCP’s 5-Year Moratorium on OFCCP compliance evaluations of TRICARE subcontractors to last through May 7, 2019. Here is the language of Section 107 of SB 2372 which President Trump signed into law as Public Law 115-182:

“SEC. 107. APPLICABILITY OF DIRECTIVE OF OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS. (a) IN GENERAL.—Notwithstanding the treatment of certain laws under subsection (i) of section 1703A of title 38, United States Code, as added by section 102 of this title, Directive 2014–01 of the Office of Federal Contract Compliance Programs of the Department of Labor (effective as of May 7, 2014) shall apply to any entity entering into an agreement under such section 1703A or section 1745 of such title, as amended by section 103, in the same manner as such directive applies to subcontractors under the TRICARE program for the duration of the moratorium provided under such directive. (b) APPLICABILITY PERIOD. —The directive described in subsection (a), and the moratorium provided under such directive, shall not be altered or rescinded before May 7, 2019. (c) TRICARE PROGRAM DEFINED. —In this section, the term ‘‘TRICARE program’’ has the meaning given that term in section 1072 of title 10, United States Code.”

It is hard to believe that OFCCP and the Government Contractor community is now four years and a month into OFCCP’s original 5-year self-imposed OFCCP Moratorium on compliance evaluations of TRICARE subcontractors. TRICARE is the approximately $6B annual federal government program to pay for the medical services and supplies delivered to eligible armed forces military retirees, some active duty Members and National Guard Members. While the Obama OFCCP issued OFCCP’s audit Moratorium in the form of Directive 2014-01 binding on its employees, OFCCP had never issued a Rule exempting TRICARE subcontractors from audit, nor had the Congress ever issued such a statute authorizing such a Moratorium.

However, the Trump OFCCP earlier this year also exercised its discretion, also by way of a Directive (DIR 2018-02) to extend the Obama OFCCP’s 5-year audit Moratorium of TRICARE subcontractors for an additional two years beyond the coming May 7, 2019 compliance evaluation Moratorium sunset date (thus extending the OFCCP Moratorium to May 7, 2021).

Analysis: The Health Care industry is now hedging its bets in anticipation of the November mid-term elections amid fears of a possible loss of the House of Representatives to the Democrats. If so, House Democrats would then seek unabashedly to influence OFCCP to exercise its discretion (perhaps through the budget and upon threat of Congressional oversight hearings) to rescind its set of two TRICARE Subcontractor OFCCP compliance evaluation Moratorium Directives and again commence compliance evaluations of many acute care hospitals and clinics currently beyond the reach of OFCCP evaluations due to the Moratorium Directives. If the House stays Republican after the November Mid-Term elections, the Bill codifying the Obama Moratorium would then make it easier for House Republicans in 2019 to extend the now Congressionally mandated Moratorium beyond its May 7, 2019 scheduled sunset date, perhaps for another two years to match the OFCCP’s exercise of its Moratorium discretion. So, this is some very clever legislative maneuvering by the health care industry.

Reminder: In the meantime, we remind our DE TRICARE subcontractor Members that should OFCCP’s compliance evaluations Moratorium sunset, in fact next May, OFCCP could commence evaluations in late 2019 reaching back TWO YEARS from the OFCCP compliance evaluation Scheduling Letter to investigate employment transactions which occurred in that two-year window BEFORE the Moratorium sunsetted (i.e. two years back from May 7, 2019 to May 7, 2017). However, as a practical matter, OFCCP just issued a CSAL on January 31, 2018 announcing 1000 upcoming compliance evaluations which we predict will occupy OFCCP through at least the end of summer 2019 at OFCCP’s current pace of evaluation starts. So, even if the TRICARE Moratorium sunsets in May 2019, it will not be until likely the Fall of 2019 or 2020 before OFCCP could re-start its compliance evaluations of TRICARE subcontractors if it chose to do so.
 
 

Thursday, June 7, 2018: OFCCP Senior Advisor Craig Leen Kicked off AAAED Conference

The American Association for Access, Equity and Diversity kicked off its 44th Annual Conference and Meeting in the Civil Rights mecca of Atlanta, Georgia with a keynote speech from the Senior Advisor to OFCCP, Craig Leen. Mr. Leen spoke to the challenges his family has faced when trying to gain equal access for his autistic daughter. He was successful in bringing awareness and change to the shortfalls of the Basic Rights section of the Florida Constitution. Now, at OFCCP, he plans to continue to bring awareness and change to the barriers faced by Individuals with Disabilities in getting and remaining in the workforce.

In addition to a widespread focus on Section 503, Mr. Leen highlighted the current focus for OFCCP:

    1. Transparency and Voluntary Compliance
      • OFCCP to provide better guidance. Items to come include: A Bill of Rights and How to Evaluate Pay Practices.
      • Apprenticeship Pilot Program. This project is in the works and would include 20 companies to undertake a potential six-year pilot program to increase equal employment opportunities. Participating companies would be free from scheduled compliance evaluations for a duration of time.
    2. More Certainty and Interactiveness
      • OFCCP understands that there are problems caused by creating and combining job groups for pay analysis. They are working on guidelines to conducting pay analysis and separate guidance geared towards Universities.
    3. Efficiency
      • OFCCP understands the need to limit the time of compliance evaluations. New goal is to get desk reviews down to 45 days.
    4. Recognition
      • OFCCP to create recognition programs to highlight high performers for each statute (EO 11246, Section 503, VEVRAA).

“We want companies to engage with us,” stated Mr. Leen. He reiterated the message we heard from Director Harris at DEAM18 when he let us know that if Federal Contractors are feeling hostility from their local Compliance Officers, they need to reach out and let the National Office know.

His heartfelt and sincere message set the stage for several days of learning and networking for the attendees of the conference. Mark your calendars now for next year’s conference, to be held at the Hyatt Regency Indianapolis June 11-13, 2019. For more information and to get involved contact:

 

Friday, June 8, 2018: EEOC Acting Chair Victoria Lipnic Spoke at AAAED Conference

Opting to grab the microphone and walk among the crowd rather than stand up on stage, Ms. Lipnic was casual, straightforward, and to the point. She proudly showcased that a focused effort on backlog led the Agency to end last year with its lowest case count in ten years. On her radar, similar to Mr. Leen, are Individuals with Disabilities. This year is the 45th anniversary of the Rehabilitation Act and last year saw the largest number of claims surrounding disability discrimination. This area will continue to be a focus for awareness and education.

Also celebrating an anniversary this year is the Age Discrimination Act. Next week marks 50 years of the Act, “the most forward-looking of discrimination Acts,” stated Ms. Lipnic, “as at some point, we all will be older employees.” Her challenge to the audience: how to highlight the value of multi-generational workforces.

In line with the recent DOL news release that for the first time on record, the number of American job openings exceeds the number of job seekers; Ms. Lipnic emphasized that “Recruiting efforts are really critical right now.” She made it very clear that she hates to hear that “no women applied” and stressed that this is an unacceptable statement. Employers need to do more with their recruiting efforts.

In response to Ms. Lipnic’s remarks, we asked Heather Hoffman, COO of Recruit Rooster to comment:

“Talent acquisition teams have one goal, to find the right candidate for the right job. That goal becomes much simpler when you showcase a strong brand and visual appeal to candidates as they begin their search,” stated Hoffman. When asked to expand on how employers are doing this, she went on to tell us, “Employers are doubling down on their recruitment efforts, increasing their recruiting spend (often dramatically) and taking the fight to the marketplace through their various recruitment tools. This includes specialized and customized recruitment microsites which increase public awareness of their brand and employee-friendly work culture.”

 

Reminder: Post-traumatic Stress Awareness Month

June is PTSD Awareness Month. Join the efforts to spread awareness about PTSD. Utilize this informative flyer in your campaign. Looking for more resources to educate your team? Check this out:

  • Veterans Employment Toolkit
    Created for employers, managers and supervisors, human resource professionals, and Employee Assistance Program (EAP) providers to support and retaining Veterans in the workplace. This Toolkit also offers employment resources for Veterans.

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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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 »

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