OFCCP Week In Review: August 5, 2019

The DE 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:

• “The Right Talent, Right Now”
• Government Contractors Descend Upon Milwaukee
• Director Leen Addressed ILG Chairs
• ILG National Conference Kicked Off
• What Did the Fox Say?
• OFCCP and ETA to Host Native American Town Hall
• Gustafson to be EEOC Counsel
• Director Leen wraps up ILG National Conference
• New OFCCP Compliance Assistance Guides

Monday, July 29, 2019: “The Right Talent, Right Now”

The Campaign for Disability Employment (funded by the U.S. Department of Labor) announced the theme for the 2019 National Disability Employment Awareness Month (NDEAM) campaign. The nationwide event celebrates the many and varied contributions of individuals with disabilities in the workforce.

The theme couldn’t be more in-line with the current focus of other agencies in the Department of Labor. Employment statistics continue to show that individuals with disabilities are “the right talent, right now.” NDEAM is celebrated the entire month of October, so employers you should start planning your events and support efforts. The poster is now available for download in both English and Spanish.

Check out the various ways to get involved on the NDEAM webpage.

Tuesday, July 30, 2019: Government Contractors descend upon Milwaukee

In preparation for the main event, the ILG National pre-conference kicked off at 8:00 AM in the Wisconsin Center in downtown Milwaukee, WI. With five different breakout sessions, each containing five unique workshops to choose from, the “pre-con” was an entire conference of its own!

Lou Orslene of the Job Accommodation Network (JAN) educated his session attendees that accessibility is an essential element of an inclusive workplace. An access-for-all approach to workplace accessibility can assist compliance, increase workplace productivity, and positively affect a company’s bottom line.

JAN is revamping its Workplace Accommodation Toolkit to include IT accessibility – stay tuned for that to come in September. In the meantime, employers (especially those preparing for an OFCCP Section 503 Focused Review) should review the extensive free resources available. Some of the tools highlighted in this session were:

• Accommodation Tracker

Reminder: Accommodation information is an item “deliverable” during an OFCCP Section 503 Focused Review. A centralized system to manage accommodations is a best practice per OFCCP.

• Just-In-Time Training Videos

Director Leen sat in on this presentation and spoke up, stressing his support and appreciation for JAN. He strongly urges all employers to get in touch with JAN and make use of the vast array of resources. (Employers HINT, HINT!!)

Tuesday, July 30, 2019: Director Leen Addressed ILG Chairs

The energy was high in the exhibit hall as old friends connected, and volunteers welcomed new faces to the 2019 Industry Liaison Group National Conference. Per tradition, the OFCCP Director took time to meet privately with representatives from ILGs across the country. Director Leen introduced the many OFCCP officials also in attendance this year and addressed questions currently abuzz in the contractor world.

A few critical take-a-ways concerning the anticipation (or anxiety?) of announcing additional compliance reviews:

• There WILL be OFCCP VEVRAA Focused Reviews – expect them around Veterans Day of THIS YEAR (November 2019).
• There WILL be “Promotion Focused Reviews” next year, but there will not be a standard definition of “promotion” from OFCCP. Instead, there will be FAQs and other guidance as to what the agency believes to be a promotion for the purposes of this type of review.
• There WILL be another Scheduling List in the spring of 2020. The current List will not be exhausted by then, but an additional List will come out.

Questions on the upcoming OFCCP Section 503 Focused Reviews:

• “Inadequate Results” for a 503 Focused Review may include a variety of issues such as recordkeeping or a lack of outreach.
• Expect OFCCP to highlight additional best practices publicly as OFCCP Compliance Officers complete Section 503 Focused Review, and new best practices come to light.
• OFCCP understands most contractors are not at the 7% IWD “Utilization Goal”. The “focus” will be on what contractors are doing to move the needle. What best practices are employers embracing?

Director Leen was candid and expressed that his politically appointed position allows him a short window to make an impact. He plans to leave his legacy as a champion for individuals with disabilities. He concluded with, “I want to do things that make sense, and will last.”

Wednesday, July 31, 2019: ILG National Conference Kicked Off

In the land of the “shifting” Harley-Davidson motorcycle, 840 old and new friends gathered to discuss how employers and OFCCP can plan for “Shifting Gears in a Fast-Changing World.” This years’ event boasted roughly 30% first-time attendees; even several OFCCP officials were rocking the “first-time attendee” sticker on their name badge. Why such a draw? What can we make of this?

Well, one thought is the astounding amount of activity coming out under the direction of OFCCP Director Leen. He has grabbed the attention of the Contractor world, bringing both new and experienced EEO professionals together to learn and hear information directly from the agency.

Let’s see….3500 audits are under-way (including (likely this Fall) 500 of the brand new Section 503 Focused Reviews), a steady stream of new Directives, FAQS, TAGS (Technical Assistance Guides), Town Halls, Opinion Letters, not to mention transparency beyond what anyone working in this space has ever seen…Yes – OFCCP has the attention of Government Contractors! Old friends chattered about all the new activity, and new faces gathered, relieved by the assurances from their more experienced colleagues: “Don’t worry, this is new to us too!”

Director Leen, steadfast on the four pillars for the agency (“Transparency,” “Efficiency,” “Certainty,” and “Recognition”) made it clear from the start, his primary mission is a focus on inclusion for individuals with disabilities.  Employers need to take a deep dive into their organizations to uncover and eliminate boundaries for individuals with disabilities. This means looking beyond just recruiting for and hiring individuals with disabilities and focus in on promotions, engagement, inclusivity, and retention – the full employment life cycle.

Employers should review the OFCCP best practice list, document what they are doing and what they plan to do. For items out of reach, explore ideas practical to the organization. Job distribution alone will NOT suffice as outreach or disability inclusivity. Employers need support from the CEO down and a genuine campaign for disability inclusion. OFCCP is currently predicting week-long on-sites for its coming Section 503 Focused Reviews, so employers, get your homes in order! A week-long on-site implies MANY employee interviews, not just HR and Compliance personnel, but likely also individuals with disabilities and hiring managers. OFCCP has promised more details outlining the specifics behind the on-site visit, including the types of employees OFCCP Compliance Officers will want to interview and what types of questions one may expect. For now, bookmark the 503 Focused Review page and buckle up!

Wednesday, July 31, 2019: What Did the Fox Say?

John C. Fox was the Plenary Session speaker at the end of the first day of the National Industry Liaison Group Annual Conference (NILG). He delivered an enthusiastically received, candid, motivating and rejuvenating discussion of Recent Significant Developments at OFCCP. In a surprise twist, Fox discussed new developments by posing 25 “Polling Questions” to the audience throughout his presentation. The answers, collected from the 800+ attendees, were compiled and displayed almost instantaneously. (Modern technology is amazing!)

After each question, after the attendees had voted, Fox provided his answer with a deep dive into the issues the question (and answers) provided.

We have complied Fox’s presentation and answers, along with his closing remarks, for our readers here:

• PowerPoint presentation which has been revised to include:
  • Opening remarks
  • Answers to polling questions & voter-demographic breakouts for each answer (which begin after polling question two)
  • Full closing remarks captured in a summary statement

Polling Question Highlights

How is Director Leen doing? (Q #14 / Slide #48)

• Government contractors gave OFCCP Director Craig Leen the highest grades of any previous OFCCP Director. Nearly 50% reported a grade of “A.”
• Fox also graded Director Leen an “A.”

How well trained in “failure-to-hire” & “compensation” discrimination analyses do you perceive OFCCP to be? (Q #15 / Slide #52 & Q#16 / Slide #58)

• In contrast to the high grades Government contractors gave OFCCP Director Leen, they gave OFCCP very poor grades for knowledge in discrimination analyses. The majority slotted a grade “C” for “failure-to hire” and nearly the same majority slotted a grade “F” for compensation discrimination analyses.

Has your company’s cohort compensation analyses detected unlawful compensation discrimination?  (Q #18 / Slide #65)

• 6% of Government contractors have “Never” found unlawful discrimination in cohort compensation analyses;
• 6% in 1% or fewer cohort analyses;
• 6% in 2% or fewer cohort analyses; and
• 8% in 3-5% of cohort analyses;
• 4% in more than 5% of cohort analyses.

Has your company’s regression analyses detected unlawful discrimination? (Q #20 / Slide #69)

• 4% of Government contractors have “Never” found systemic compensation discrimination in regression compensation analyses;
• 40% found it in 1% or fewer regression analyses;
• 10% found it in 2% or fewer regressions; and
• 2% found it in 5% or more of their regression discrimination analyses.

Should OFCCP stop its compensation discrimination analyses until it trains its Compliance Officers? (Q #21 / Slide #71)

• A whopping 83% of Government contractors voted for OFCCP to cease compensation investigations pending training, while 6% said they did not know enough to vote.
• Only 11% of Government contractors thought OFCCP should continue compensation investigations without further training.

Do you undertake regression analyses when your compensation data are incomplete (because lacking digitized data re all the major factors which affect pay) and the law says those incomplete data are not capable of meaningful or relevant analysis? (Q #22 / Slide #73)

• A whopping 41% of Government contractors reported they undertake these entirely irrelevant analyses.
• An even larger percentage of vendors (55%) reported they undertake these entirely useless pay equity analyses, and an astonishing 75% of lawyers in law firms reported they undertake these useless analyses.

Per Fox: Next year’s questions will be WHY IN THE WORLD ARE YOU DOING THIS AND PAYING GOOD MONEY FOR USELESS STUDIES? and DO YOU HAVE MALPRACTICE INSURANCE IF YOU DO NOT WARN YOUR CLIENTS THESE STUDIES ARE POTENTIALLY MISLEADING, AND A WASTE OF TIME AND GOOD MONEY?!!

Interesting Observation

Compare OFCCP’s answers on the substantive questions listed above and note that OFCCP voted almost completely 180 degrees opposite to the Government contractors in the room. This stark divergence of perceptions between the regulated and the regulators was especially evident as to the attendees’ perception of the quality of OFCCP’s handling of “failure-to-hire” and “compensation” audits. Rarely have the two worlds of Government contractors and OFCCP investigators been so far apart. This represents a real challenge and opportunity for industry trade associations and ILGs to design specific courses of action to help train OFCCP in coming months in discrimination law and investigations and bridge the current disharmony.

Wednesday, July 31, 2019: OFCCP and ETA to Host Native American Town Hall

The Office of Federal Contract Compliance Programs (OFCCP) announced another upcoming town hall event.

Together with the U.S. Department of Labor’s Employment and Training Administration, OFCCP is looking to improve outreach and compliance assistance to the Native American community. For this town hall, OFCCP will also partner with the U.S. Department of Health and Human Services’ Indian Health Service (IHS) and the Administration for Native Americans (ANA).

Date & Time

• Wed, September 4, 2019
• 8:30 AM – 1:00 PM MST

Location

Embassy Suites by Hilton Phoenix Biltmore, 2630 East Camelback Road, Phoenix, Arizona 85016

Registration

• Register to attend online through Eventbrite.

The meeting is open to the public but will be of particular interest to Native American tribal leaders’ councils, tribal members, and community groups.

Thursday, August 1, 2019: Gustafson to be EEOC Counsel

Sharon Fast Gustafson, of Virginia, was confirmed by the Senate to be General Counsel of the Equal Employment Opportunity Commission. She will serve a term of four years.

Friday, August 2, 2019: Director Leen wraps up ILG National Conference

“This was one of the best weeks of my life!” Director Leen exclaimed in his final comments to the crowd during the closing recap of the 2019 Industry Liaison Group (ILG) national conference. Over 20 OFCCP officials and representatives from the Solicitors office were in attendance at this year’s event. It was both refreshing and significant to have these individuals present throughout the entire week. They not only presented, but participated in various panels, were available for one-off conversations, and even joined in the fun for some bag toss and giant Jenga!

Recap Highlights

• A reminder that the Scheduling Letter Comment period closed. Director Leen expressed his gratitude for the comments received and promised the agency would review each one. Given his statement throughout the week to “meet us halfway,” the contractor world shall wait and see where the halfway mark will fall on these new Letters.
• OFCCP will further clarify the items applicable to the 30-day extension after receiving a Scheduling Letter. The agency is working under the GAO guidance, which expressed the concern that many contractors may not be doing affirmative action plans at all. Compliant contractors should be able to turn in the essential components of their plan upon request (discussed to be “the narrative”).
• A reiteration of the understanding that contractors want more information from Compliance Officers earlier during Compliance Evaluations. Director Leen reassured the audience that to the best of ITS ability, given their constraints, the agency will continue to give contractors feedback when and where possible.
• OFCCP has hired an Ombudsmen (per Directive 2018-09). The individual has a great amount of mediation experience. A formal announcement and introduction to come soon.
• OFCCP will open its online help desk (per Directive 2019-03) in the very near future.

Friday, August 2, 2019: New OFCCP Compliance Assistance Guides

The OFCCP announced the launch of new compliance assistance resources, including:

• “OFCCP at a Glance:” a 12-page booklet that provides an overview of the OFCCP and general information about the statutes OFCCP enforces.
• “Posting and Notices Guide:” a 15-page booklet outlining posting and notice requirements for Government contractors. [This “posting” guide does not address the separate compliance requirement under VEVRAA that covered Government Contractors “list” (NOT “post) their available and covered jobs with the appropriate state employment services.]
• “Applicant Tracking Guide:” a four-page infographic outlining “Who is an Applicant.” IMPORTANT: This Guide defines a “traditional” Applicant (applying on paper application forms) to be an “Applicant” even if s/he is not minimally qualified for the job, even if s/he lacks proper work authorization allowing them to work in the United States and even if there is no job available.  This a very problematic development because OFCCP is now inconsistent with its prior guidance on this issue, inconsistent with the Internet Applicant definition and inconsistent with Title VII case law. Expect much head knocking in future “failure-to-hire” audits.
• “Applicant Tracking FAQs,” a four-page Q&A on Applicant recordkeeping requirements.
• Recordkeeping guides for Section 503, VEVRAA, and Executive Order 11246.

The Technical Assistance Guides (TAGs”) for Construction and separately for Supply & Service contractors are “under construction.”

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.