OFCCP Week In Review: November 19, 2018

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:

• OFCCP (Acting) Director Craig Leen Addressed the U.S. Commission on Civil Rights
• USDOL Celebrated a Week-Long National Apprenticeship Week
• Deadline Approaching for Disability:IN Inclusion Awards
• Upcoming Wishes: Happy Thanksgiving!

Friday, November 2, 2018: OFCCP (Acting) Director Craig Leen Addressed the U.S. Commission on Civil Rights

This is the link to an almost seven minute video (from minute 28:45 to minute 35:25) of Director Leen’s remarks to the U.S. Commission on Civil Rights. In his extemporaneous remarks, Director Leen covered a lot of ground, including:

• Top on Director Leen’s list of OFCCP concerns is the Government Accounting Office’s (“GAO”) 2016 Report to OFCCP that “many” covered Government Contractors were not undertaking Affirmative Action Programs they were contractually obligated to create.
• Director Leen reiterated earlier public statements (see OFCCP Week In Review: October 22, 2018) that OFCCP has been reminding covered Government Contractors that they sign verifications with the Government Services Agency (“GSA”) when bidding on new Government Contracts that they either have or do not have Affirmative Action Plans in place at the time they are bidding on new Government contracts. OFCCP intends to develop a program with GSA to harvest information about which contractors indicate they do not have AAPs in place and to spot-check audit them through “Compliance Checks” and to spot-check audit through on-site “Focused Reviews” those Government Contractors which indicate to GSA they have AAPs in place.
• Director Leen reiterated that OFCCP was eventually hoping to also collect and catalogue AAPs from all of the currently estimated 25,000 prime Government Contractors operating through approximately 120,000 AAP establishments (although we have previously heard about 125,000 AAP establishments, although this number continually fluctuates) and to thereafter eventually undertake a review of those AAPs to eventually use them to then decide which contractors and which establishments to audit. No confirmation this will occur, or when.
• Director Leen’s reference to OFCCP’s coming hoped-for return to the use at OFCCP of “Compliance Checks” (one of OFCCP’s four forms of “Compliance Evaluations”) was an early alert to Contractors. OFCCP would use this investigative tool to help check-up on companies which have become newly covered Government Contractors to confirm that they have the requisite AAPs on hand. OFCCP has not used the Compliance Check investigative tool since the Bush OFCCP in the late 2000’s abandoned its use because of the high costs to undertake on-site audits as part of the Compliance Check procedure (which used to last only approximately 20 minutes, on average). Director Leen did not confirm that the Compliance Check would indeed return to use in OFCCP’s investigative arsenal or the form of investigation his version of the Compliance Check would take were OFCCP to dust off this tool and again deploy it.
• Director Leen also expressed OFCCP’s concern that the agency has historically and is currently placing most of its resources on race and gender discrimination investigations and that he wished to broaden OFCCP’s horizons to the other eight forms of unlawful discrimination OFCCP is authorized to investigate and prosecute, especially as to disability discrimination. To that end, OFCCP was actively planning to announce (he hoped) as many as 500 “Focused Reviews” (another of OFCCP’s four forms of “Compliance Evaluations” OFCCP’s Rules authorize OFCCP to deploy) dedicated solely to the contractor compliance with its Affirmative Action and non-discrimination requirements pursuant to Section 503 of The Rehabilitation Act of 1973. While he did not testify to the Civil Rights Commission about the timing of these coming Focused reviews, OFCCP has elsewhere written that it expects to announce its next list of Corporate Scheduling Announcement Letters (“CSALs”), including Focused Review letters for the first time, in “early Winter” 2019. Director Leen took an expansive approach to disability accommodations and reported that he believed contractors “should be granting every accommodation request.”

Friday, November 16, 2018: USDOL Celebrated a Week-Long National Apprenticeship Week

Calling apprenticeships “a proven way to help Americans learn the skills they need for good, safe, family-sustaining jobs,” Secretary of Labor Acosta put the full weight of the Trump Administration behind apprenticeship training programs by attending on EACH day of last week a noteworthy apprenticeship event highlighting the utility of apprenticeships. This included a meeting with apprentices and pre-apprentices at the International Union of Painters and Allied Trades District Council No. 51’s Apprenticeship Training Facility in Maryland. The Department also published a video of the stories former apprentices told about their successful apprenticeships. Then, The Secretary traveled to The White House to join President Trump and Secretary of Veterans Affairs Robert Wilkie at an event in celebration of veterans and military families. Finally, Secretary Acosta traveled to Indiana with U.S. Senator Todd Young (R-Indiana, and a Member of the Senate Health, Education, Labor and Pensions Committee) where they made several stops together to advocate for more apprenticeship training programs.

If you have questions about whether and how to start an apprenticeship training program, please do not hesitate to contact Candee Chambers who sits on the Apprenticeship Powered by Industry (API) Leadership Committee or Shannon Offord who sits on the API Talent Pipeline Subgroup Committee. 

Reminder: Deadline Approaching for Disability:IN Inclusion Awards

Friday, November 30, 2018 is the deadline to get nominations in for the 2019 Disability Inclusion Awards. There are ten categories you may qualify for:

• John D. Kemp Leadership Award
• Employer of the Year (2 awards)
• Marketplace Innovator of the Year (2 awards)
• Affiliate of the Year
• Top Corporation for Disability-Owned Businesses Award
• Supplier Diversity Advocate of the Year
• Supplier of the Year
• ERG/BRG of the Year
• ERG/BRG Executive Sponsor of the Year
• NextGen Leader Alum of the Year

See the full list of 2018 winners here.

Upcoming Wishes: Happy Thanksgiving

DirectEmployers shares our gratitude and thanks to all of you!

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.