OFCCP Week In Review: November 26, 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:

• USDOL “Junkyard Dogs” Still Investigating OFCCP’s Construction Program
• OFCCP Grants Supply & Service Contractors 3-Month Limited “Exemption and Waiver” “In the National Interest” to Enter Federal Contracts for California Wildfire Relief Efforts

Monday, November 19, 2018: USDOL “Junkyard Dogs” Still Investigating OFCCP’s Construction Program

They are famously named for their dogged, relentless and feared investigations of “fraud, waste and abuse” at the federal agencies for which they are responsible. Last week, The “Office of Audit” of the Office of Inspector General for The U.S. Department of Labor issued its FY2019 “Audit Workplan” announcing, among other things, that the Office was continuing into its fourth year of an “ongoing (discretionary) audit” (dating from FY2015 of the Obama Administration) of “…OFCCP’s policies and procedures for enforcing EEO requirements over federally-funded construction contracts.” (See page 7 of the Audit Workplan.) Here is the way the Office of Audit has described it’s investigation beginning in FY 2016 and then through its FY 2018 (last year’s) Audit Workplan (see page 6):

“We will continue our work to determine if OFCCP’s policies and procedures for enforcing equal employment opportunity requirements over federal or federally-funded construction contracts were adequate.”

On the heels of OFCCP’s loss in the federal courts of the OFCCP v. Baker DC case (see OFCCP Week In Review: April 9, 2018), and given the great length of time this investigation has been in progress and given that Inspector General Reports at USDOL generally do not turn out well for the 28 subject sub-agencies and individuals under investigation, this suddenly becomes a potentially important investigation for construction contractors to watch and follow. The Inspector General’s investigation will at a minimum influence and impact the way OFCCP currently shapes it future course of conduct and investigation of federally-funded construction contractors.

Monday, November 19, 2018: OFCCP Grants Supply & Service Contractors 3-Month Limited “Exemption and Waiver” “In the National Interest” to Enter Federal Contracts for California Wildfire Relief Efforts

OFCCP Acting Director Craig Leen signed a Memorandum to all federal contracting agencies of the federal government last Monday to relieve covered “Supply and Service” Government contractors of the obligation to develop written affirmative action programs (and other affirmative action requirements) otherwise required under Executive Order 11246, Section 503 of the Rehabilitation Act of 1973 and 38 USC Section 4212, otherwise known as VEVRAA.

Note 1: The exemption and waiver applies to only “…covered contracts entered into specifically to provide California Wildfire relief”; and

Note 2: The exemption and waiver is for three months only from November 19, 2018 to February 19, 2019; and

Note 3: This is a full exemption and waiver from all but three affirmative action compliance obligations (discussed below) and not merely a delay of the obligations. Accordingly, any otherwise covered Government Supply and Service contractor covered by the exemption and waiver does not have to create AAPs if the company signed its contract during the three-month exemption and waiver period; and

Note 4: The exemption and waiver does NOT apply to construction contractors; and

Note 5: Exempted Supply and Service contractors must nonetheless still comply with all of OFCCP’s non-discrimination requirements and the following three Affirmative Action obligations beyond AAPs:

• 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.

In so limiting affirmative action requirements to Wildfire Relief contractors to the above three stated compliance obligations, OFCCP is also silently stating that covered Government contractors covered by the Wildfires exemption and waiver are also exempted from the 47 OTHER affirmative action compliance obligations beyond the duty to prepare AAPs. NOTE: We are seeking clarification of this seeming gap in specific statement in OFCCP’s exemption and waiver Memorandum.

Special Note: OFCCP’s continuation of the above three Affirmative Action requirements despite the waiver of most affirmative action requirements for Supply and Service contractors reveals the importance which OFCCP ascribes to these three particular affirmative action requirements:

• The poster requirement is key in OFCCP’s mind: it puts applicants and employees on notice of their legal rights about which they might not otherwise be aware;
• Recordkeeping requirements are vital to OFCCP’s ability to prosecute discrimination cases, especially failure-to-hire cases;
• And, the “available jobs listing” requirement (Candee Chambers’ favorite “soapbox issue”) is critical to OFCCP because it thinks the contractor’s “listing” of jobs is the “magic sauce” which gets veterans hired by putting them on accelerated notice of available jobs.

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.