OFCCP Week In Review: September 3, 2019

• Myth Busters on FAAPs Revealed
• Updates from Colorado ILG Meeting
• JAN Updated its Workplace Accommodation Toolkit
• ODEP Reminder on NDEAM
• EEOC Reports to Federal Court that Only 72% of Companies, on Average, File EEO-1 Component 1 Report Each Year

Wednesday, August 21, 2019: Myth Busters on FAAPs Revealed

The Office of Federal Contract Compliance Programs looks to clear up misconceptions the agency perceives to exist in the minds of contractors surrounding the use of Functional Affirmative Action Programs (FAAPs). This comes on the heels of OFCCP’s release last week of the revised FAAP Directive.

OFCCP’S myths and facts publication includes changes per the revised FAAP Directive.

OFCCP MYTH # 1: FAAP agreements are burdensome to maintain because OFCCP requires updates whenever a contractor makes even a minimal change.

OFCCP FACT # 1: Contractors are no longer required to submit annual updates to their FAAP agreements. Contractors are only required to notify OFCCP, within 60 days, when there are substantive changes that result in the addition or removal of functional units.

OFCCP MYTH # 2: The FAAP application process is burdensome and time-consuming.

OFCCP FACT # 2: A determination is issued within 60 days once a contractor submits a completed FAAP application to OFCCP. During the review process, a FAAP staff member works closely with the contractor, assisting it to develop an agreement accurately reflecting how the company does business.

Thursday, August 29, 2019: Updates from Colorado ILG Meeting

The Colorado Industry Liaison Group (ILG), also known as the Front Range ILG, hosted its quarterly meeting in Denver. Members came together to hear industry updates, compliance training, and to enjoy a great networking opportunity. DirectEmployers (DE) was honored to be a part of the meeting and can share the following updates.

Chris Patrick of Jackson Lewis provided an excellent recap of the vibe and news from the National Industry Liaison Group’s annual conference held earlier this month. Matching OFCCP’s four pillars of Certainty, Transparency, Efficiency, and Recognition, to recent OFCCP activities, Chris pointed out that OFCCP is putting actions to words. The theme throughout the conference was the need to put a greater focus on inclusivity for individuals with disabilities. This theme reigned true for the Colorado ILG meeting as well. The presenters and topics focused on what contractors can do to further their knowledge and efforts in this space.

OFCCP was unable to attend the CO ILG meeting. Michelle Duncan, a co-chair of the Colorado ILG, informed Members that all OFCCP staff are currently in Dallas undergoing training for the upcoming Section 503 Focused Reviews. In other OFCCP news, the Colorado office will be staffing up after the recent retirement of the District Director, Nicole Huggins.

Jennifer Polcer of DE presented on how to ensure your company career website is OFCCP compliant. She provided examples from various DE Member career pages as well as some of her current experiences in reviewing DE Member sites. The audience left with the tools and resources needed to ensure their sites are good to go! Jen also stressed the importance of not only having an accommodation statement on your site but making sure someone is responding timely to those who reach out (and documenting the contact!). Organizations looking to go the next step and make their websites accessible (as recommended in the OFCCP Best Practices) should reach out to Recruit Rooster. Companies can get an accessibility audit of their site and explore recommendations for improvements.

Rounding out the theme on disability inclusivity and tying into the OFCCP Best Practices for Section 503, DE was happy to invite and share the podium with Heather Brooks from the Colorado Department of Vocational Rehabilitation (DVR). Heather gave an excellent presentation outlining all of the FREE services DVR has to offer Colorado employers. It was great to hear that many of the companies present were using DVR services and getting great results.

Thursday, August 28, 2019: JAN Updated its Workplace Accommodation Toolkit

The Job Accommodation Network (JAN) recently refreshed its Workplace Accommodation Toolkit – a free, comprehensive resource for employers seeking to move beyond basic compliance with the Americans with Disabilities Act and create more disability-inclusive workplaces.

The Toolkit includes:

• Actionable accommodation policies and processes from leading businesses;
• Forms, training presentations, and role-play videos;
• Best and emerging practices for creating a disability-inclusive workplace across all phases of the employment life cycle.
• NEW! A drawer of tools for IT Professionals responsible for digital accessibility;
• NEW! The Solution Showcase – short videos of various technology solutions for effective job accommodations;
• NEW! A role-playing video depicting the performance management of an employee with opioid addiction.

The Toolkit is a valuable resource for recruiters and hiring managers; supervisors and managers; reasonable accommodation subject matter experts; technology professionals; and employees with disabilities and their allies.

To access the Workplace Accommodation Toolkit, visit AskJAN.org/toolkit.

Friday, August 30, 2019: ODEP Reminder on NDEAM

​The Office of Disability Employment Policy (ODEP) sent out a reminder that National Disability Employment Awareness Month (NDEAM) is coming up! Every October, this nationwide campaign is a time to celebrate the skills and talents that people with disabilities bring to America’s workplaces. It is an excellent time for organizations to demonstrate their commitment to disability inclusion.

This year’s NDEAM theme is The Right Talent, Right Now. Workers with disabilities play an essential role in America’s economic success, especially in an era when historically low unemployment and global competition are creating a high demand for skilled talent.

Check out ODEP’s NDEAM toolkit to get resources for the campaign.

Friday, August 30, 2019: EEOC Reports to Federal Court that Only 72% of Companies, on Average, File EEO-1 Component 1 Report Each Year

In the EEOC’s seventh “Notice” to the Federal District Court in Washington D.C. on the agency’s progress to order EEO-1 covered employers to file Component 2 “hours worked” and “compensation data,” the EEOC has now reported that only 72% of employers in recent years have filed Component 1 race, sex, and ethnic data. The case is National Women’s Law Center (“NWLC”) v. Office of Management and Budget, et al. Civil Action No. 17-cv-2458 pending before Judge Tanya S. Chutkan. We have reported frequently on this case in past issues, see the Week-In-Review (WIR) dated June 10, 2019, for a full breakdown of the EEO-1 Component 2 WIR headlines including the highlights through the first court-ordered update on May 28, 2019, and WIR August 16, 2019, for our most recent report.

This percentage of past filers is important because in light of the DirectEmployers’ (DE) Survey of its Members about how quickly they could file Component 2 data if they were required to and disposed to do so, over 60% of DE Members reported they could NOT be ready to file by the September 30, 2019 filing date Judge Chutkan was considering ordering the EEOC to adopt. After DE filed an Amicus Curiae brief (i.e., “friend of the court” brief) with the Court informing it of its Member Survey results, Judge Chutkan did Order the EEOC to order EEO-1 filers to report Component 2 data by September 30, 2019, but ALSO ordered the EEOC to hold open its Component 2 filing portal until the average of Component 2 filings was equal to the average of past Component 1 filings. (While little known, the EEOC has historically quietly held the EEO-1 reporting portal open for two weeks after its stated closing date to allow late filers to get on file and to allow those having difficulty delivering their data electronically to the EEO-1 reporting portal to work through the filing snags.)

The EEOC has been studying its past EEO-1 filing history and in an “Interim NWLC Status Report” attached to its Seventh Notice to the Court and has now reported to the Court an employer filing rate of only 72% (2014), 51% (2015), 72% (2016), and 74% (2017). This is an average of 72% (in rounded numbers) after one throws out the aberrational year 2015 (during which the EEOC had portal filing problems and had, as a result, allowed only a short reporting runway). “At this point (and at least until a significant percentage of filers have submitted Component 2 data), the EEOC cannot project what percentage of filers will submit Component 2 data by September 30, 2019,” the EEOC also reported in its Interim Report to Judge Chutkan on Friday.

EDITOR’S NOTE: Given the DE Member Survey results of how long it would take most Members to file Component 2 data, it appears to us that the EEOC will likely not close the Component 2 filing portal until early next year (2020) if it wishes to achieve a 72% employer filing percentage. And, that predicted date, itself, may be problematic given the mounting resistance to employers filing Component 2 data at all given the growing fears of data hacks and misuse of the data.

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.