United States: OFCCP Acting Director Promises Clear Guidance And Consistency While Laying Out A Program Of Carrots And Sticks

Last Updated: August 14 2018
Article by Lance E. Gibbons and David J. Goldstein

In his first two speeches after taking over as Acting Director of the Office of Federal Contract Compliance Programs (OFCCP), Craig Leen emphasized a commitment to the rule of law, promised to provide contractors with clear guidance and transparent enforcement processes, offered incentives for voluntary compliance, and outlined plans to identify and audit government contractors that are ignoring their obligations. His speeches came at the beginning and end of a four-day Industry Liaison Group National Conference held last week in Anaheim, California that was attended by HR compliance professionals and officials from the Department of Labor (DOL), OFCCP, and Equal Employment Opportunity Commission (EEOC). Although the conference included presentations from industry experts, the highlight for many was the opportunity to hear directly from the OFCCP, including its new acting director.

Mr. Leen opened the conference with a keynote address focusing on his goals for the OFCCP, including transparency, certainty, efficiency, and recognition. Mr. Leen highlighted OFCCP's recent Directive 2018-01, which requires a Predetermination Notice (PDN) in all cases with preliminary individual and systemic discrimination findings. According to Mr. Leen, contractors can expect meaningful, good-faith conciliation. Additionally, he noted that the OFCCP will no longer engage in fishing expeditions with information requests during a compliance evaluation. Instead, OFCCP compliance officers must have specific reasons for a request and be able to explain the need for the information upon request. Importantly, in the information request context, Mr. Leen explicitly acknowledged that contractors will be given reasonable time to respond and that the age of "false deadlines" to show authority was over.

Mr. Leen noted also that compensation discrimination will still be a focus even as the agency continues to evaluate Directive 307, the agency's controversial procedures for reviewing compensation. He also discussed the possibility of focused reviews on VEVRAA and Section 503 compliance. Lastly, with respect to compliance evaluations, he noted a continued emphasis on clearing the case backlog and an aspiration to close new evaluations within 45 days of submission where there are no indicators of discrimination.

Mr. Leen discussed the OFCCP's existing compliance assistance resources, including a toll-free help line. He revealed that the OFCCP is exploring the use of opinion letters similar to those issued by the DOL's Wage & Hour Division. According to Mr. Leen, opinion letters are more useful than FAQs because the OFCCP can provide better guidance based on specific factual scenarios. Finally, he noted that OFCCP is also thinking about reviving the ombudsman position in order to create a new avenue for resolving disputes between contractors and the agency.

Mr. Leen concluded his opening remarks by discussing his personal experiences in the disability arena, inspired by his two children with autism. He noted that it is good business to create an environment that is inclusive and that the agency will continue to focus on disability outreach efforts and hiring.

Last week also saw the release of a contractor's "Bill of Rights" titled "What Contractors Can Expect." This document, conceived during the OFCCP's Town Hall Meetings earlier this year, covers many items Mr. Leen highlighted during his keynote address and sets forth these specific expectations for contractors during their interactions with the OFCCP:

  • Access to accurate compliance assistance material;
  • Timely responses to compliance assistance questions;
  • Opportunities to provide meaningful feedback and to collaborate;
  • Professional conduct by the OFCCP's compliance staff;
  • Neutral scheduling of compliance evaluations;
  • Reasonable opportunity to discuss compliance evaluation concerns;
  • Timely and efficient progress on compliance evaluations; and
  • Confidentiality.

After opening the conference on Tuesday, Mr. Leen then had the final word on Friday, closing the conference by emphasizing the OFCCP's intention to reduce the burden on those contractors that are working hard to fully comply with the agency's regulations while more efficiently seeking out those contractors that are not in compliance. In particular, Mr. Leen indicated that the OFCCP will be reviewing contractor databases to confirm that entities with government contracts have certified their compliance with the OFCCP's requirements. Entities with government contracts that have not certified compliance will be prime targets for government audits.

Because the OFCCP is able to audit only a small percentage of federal contractors, in the past some contractors might have chosen to forego full compliance based on a perception of minimal risk. Other contractors may simply be unaware of their obligations or have good-faith doubts as to whether they are covered. Greater government efforts to require certifications from covered contractors combined with OFCCP review of non-certifying contractors would substantially alter the calculations of contractors that are attempting to determine whether they are subject to the OFCCP's regulations or assessing how to approach compliance.

Throughout the conference, Mr. Leen was visible and engaged and receptive to comments and suggestions from those in attendance, including the authors of this article. While it seems clear that the OFCCP is going to make it harder for government contractors to avoid compliance, there is also reason to believe that the agency has a new and welcome interest in promoting practical contractor efforts that meaningfully increase opportunities for minorities, women, the disabled and veterans instead of rigidly enforcing inflexible requirements that consume substantial contractor resources without significantly advancing affirmative action and equal employment opportunity.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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