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:
- DOL Announced Assistance for Hurricane Florence Recovery
- NASWA Workforce Summit Highlighted Apprenticeships
- Compliance Evaluations–Contractors Named
- OFCCP Directive Issued on Transparency
- OFCCP Directive Issued on Ombud Service
- Reminder: VETS Report Due
Monday, September 17, 2018: DOL Announced Assistance for Hurricane Florence Recovery
U.S. DOL announced that several of its Agencies are providing some form of relief to assist those in states affected by Hurricane Florence. The Department will continue to monitor developments regarding Hurricane Florence and take additional actions as necessary. For the latest updates, please visit the Department’s Severe Storm and Flood Recovery Assistance webpage.
From the OFCCP
Acting Director, Craig Leen granted a limited exemption and waiver from some of the requirements of the laws administered by the Agency.
Who Gets an Exemption?
Federal contracting agencies which have entered into covered contracts to provide Hurricane Florence relief.
Exempt from What?
The requirement to develop written affirmative action programs under OFCCP regulations implementing EO 11246, VEVRAA, and Section 503 of the Rehabilitation Act of 1973, as amended.
For How Long?
For a period of three months, from September 17, 2018, to December 17, 2018, subject to an extension should special circumstances in the national interest so require.
Must Continue to…
Abide by the nondiscrimination requirements of EO11246, VEVRAA and Section 503, and to the following FAR requirements:
- Posting of the “Equal Opportunity is the Law” notice under all three laws;
- Record keeping and record retention requirements under all three laws; and
- Employment listings with the appropriate employment service delivery system as required under VEVRAA.
Listing IS NOT Posting! Remember ‘Employers List, States Post.’ The regulations require you list your available jobs with the local state jobs agency. States may choose (or not) to post your jobs to their job board, but that is NOT what the regulation requires of the Covered Federal Contractor.
Members: Not to worry, we both list and post for you!
Additional FAQs on the National Interest Exemption are here.
Wednesday, September 19, 2018: NASWA Workforce Summit Highlighted Apprenticeships
Among a crowd of nearly 500, NASWA kicked off its 82nd Annual Workforce Summit & UI Directors’ Conference, combining the 82nd annual event with the Unemployment Insurance Conference. This 4-day event combined a plethora of committee meetings, breakout sessions, and exhibitor showcases. Not to be missed was the Workforce Innovation Awards Dinner and Reception held at the Barber Motorsports Museum.
The Employment & Training Administration (ETA) provided some great highlights to get the event rolling. John Ladd, Director of Office of Apprenticeship, highlighted that:
- The Agency released in the Federal Register its request to solicit comments in part of its continued effort to reduce paperwork and respondent The Department is proposing the development of a form titled “Industry-Recognized Apprenticeship Programs Accrediting Entity Information,” as part of the on-going push to establish apprenticeships. Get your comments in by November 19, 2018.
- In other efforts to get more apprenticeships accredited, the 65-page registration process is under construction to reduce it to 16-pages, and get this – PDF fillable! Stay tuned for progress there; year-end is target release.
- National Apprenticeship Week is November 12-18, 2018
- gov launched! We highlighted that here.
Wednesday, September 19, 2018: Compliance Evaluations–Contractors Named
In an unprecedented move, OFCCP publicly published the names and addresses of the Federal Contractor establishments most recently selected to receive Corporate Scheduling Audit Letters (CSALs). Posted are the following Lists:
- FY 2017 CSAL List, containing 801 “Units,” sent out starting 2/17/17
- FY 2018 CSAL List, containing 1002 “Units,” sent out starting 2/1/18
- FY 2018 Scheduling List Supplement, containing 750 “Units,” sent out starting 9/7/18
Individuals frequently request these lists under the Freedom of Information Act (FIOA), but the agency has declined to make them publicly available until now, OFCCP spokesman Edwin Nieves told Bloomberg Law Sept. 20. OFCCP will also post the lists on their website going forward.
Get your house in order! Start working on an action plan on who and what information you need to compile from the Itemized List.
Thursday, September 20, 2018: OFCCP Directive Issued on Transparency
Directive 2018 – 08: Transparency in OFCCP Compliance. “To provide greater clarity regarding the compliance review process, which will allow contractors to perform self-audits and come into full compliance in advance of a compliance review or enforcement matter.”
This 6-page Directive outlines the rules of engagement between OFCCP and Federal Contractors as they pertain to the compliance evaluation process. Specifically:
- Ensure non-discrimination and affirmative action in the workplace through implementation of EO 11246, Section 503 and VEVRAA requirements;
- Submit affirmative action plans (AAPs) and support data timely when scheduled for a compliance evaluation; and
- Allow OFCCP access to records and establishments, per applicable law and contractual provisions.
- Be transparent and collaborative in educating contractors about how to comply with their requirements;
- Conduct high quality, consistent, and efficient compliance evaluations;
- Ensure there is open communication, cooperation, and intent to minimize unnecessary burden;
- Make considerable efforts to resolve violations through conciliation; and
- Stand ready to pursue litigation vigorously when necessary.
The Directive goes on to spell out details during the various stages of compliance evaluations (scheduling, pre-desk audit, desk audit, pre-onsite, off-site analysis, conciliation efforts). There is also an attachment of sample language OFCCP will use in letters to contractors to confirm an onsite audit for supply and service contractors.
This particular piece (from the desk audit section) is worth noting – “Work to close reviews quickly where there are no indicators of discrimination or evidence of other violations. Ideally, and in the majority of cases, OFCCP would complete a typical desk audit within 45 days of receiving complete and acceptable AAP(s) and supporting data. By applying the above principles nationwide, OFCCP should significantly improve its ability to meet this goal.”
Thursday, September 20, 2018: OFCCP Directive Issued on Ombud Service
Directive 2018-09: OFCCP Ombud Service.
This 3-page Directive outlines the future role that Ombudsmen will provide OFCCP and Federal Contractors. Specifically:
- Listen to external stakeholder concerns about OFCCP matters and suggestions for improvements;
- Promote and facilitate resolution of OFCCP matters at the district and region office level;
- Work with OFCCP district and regional offices as a liaison to resolve specific issues after stakeholders have exhausted office channels;
- Refer stakeholders to OFCCP’s Help Desk for routine compliance and technical assistance inquiries;
- Accept and review matters referred directly by the national office; and
- Have the discretion to reject a referral in appropriate circumstances.
Ombudsmen will not:
- Advocate for either side of a dispute;
- Give legal advice, analysis, opinions, or conclusions;
- Conduct compliance evaluations, complaint investigations or participate in conciliation agreement negotiations;
- Have any role in conduct or discipline issues regarding OFCCP staff.
This Directive, coming on the heels of the Transparency Directive (above), further showcase the “new and friendlier OFCCP,” and an agency that is listening and responding. These Directives focus on not only the 2016 Government Accountability Office report, but also the feedback received in the Town Hall meetings last year.
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.