OFCCP Director Craig Leen thinks the Agency has made good progress on implementing “the four pillars” but there is still work to be done.

Speaking this week in Florida, Director Leen shared accomplishments, and things to come, for each of the four tenants.  However, he noted he was not allowed to comment on the pending proposed changes to the scheduling letters.

Transparency

Referring to it as the “linchpin” of all of the pillars, Director Leen enumerated some of the item the Agency has done to be more transparent (e.g. publication of the scheduling methodology and posting of conciliation agreements) as well as discussed additional guidance and information soon to be released.

These items include Technical Assistance Guides for higher education, compensation and “at  least one other.”  He also previewed that the agency is working on an update to the FCCM (Federal Contractor Compliance Manual) to be released “hopefully soon.”

He also reiterated that OFCCP is putting out new FAQs to provide contractors with additional guidance, including new ones on apprenticeship programs, military spouses and use of the national interest exemption for contractors who are requested to provide services in response to natural disasters.  Director Leen has also been very transparent about his thoughts on the important of practical significance in addition to statistical significance and shared the agency will soon be releasing an FAQ addressing that topic as well.

Director Leen also indicated additional guidance for Focused Reviews will be coming – reiterating on-sites for the current round of Section 503 Focused reviews will not be scheduled before September.  He also confirmed the next round of audits will include VEVRAA focused reviews (evaluating the intersection of disability and veteran status) and then the Agency is planning to conduct focused reviews on organizations’ promotion processes, including promotions of individuals with disabilities.  Director Leen does not intend to target any specific industry, as has been reported, but plans to review across all industries.

Certainty

This second pillar “ties into transparency” and reflects the Rule of Law according to Director Leen.  For OFCCP that means engaging in the rulemaking process in the future, specifically TRICARE and religious exemptions in the near term, and “hopefully” something on PDNs and Notices of Violation.  Director Leen noted the absence of any mention in the regulations about the process before the issuance of a Show Cause.

He also spent time discussing the contractors request, and the need, for more guidance from the agency on compensation analyses, stating

If you don’t know how to put together a PAG [that will be acceptable to the Agency] there is no Rule of Law. . . If there is no clear guidance, how can you come into compliance in advance?

He hopes the forthcoming guidance from the agency will assist with certainty around this area.  Interestingly, Director Leen did not mention the Agency’s use of opinion letters.

Efficiency

Director Leen acknowledged he is focusing a lot on this pillar in FY2019, particularly in the area of resolving aged cases.  He believes aged cases disadvantage everyone involved, from contractors to the Agency but especially the employees.

Recognition

Finally, Director Leen reminded attendees that they Agency is working to develop recognition programs and invited feedback through the public comment process on the proposed programs.

 

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Photo of Laura A. Mitchell Laura A. Mitchell

Laura A. Mitchell is a Principal in the Denver, Colorado, office of Jackson Lewis P.C. She is a member of the firm’s Affirmative Action and OFCCP Defense practice group as well as the firm’s Pay Equity Resource Group. She is also on the leadership team for the firm’s Government Contractor Industry Group.

Her practice is focused on representing government and non-government contractors in OFCCP matters, preparing for and defending OFCCP audits, and counseling employers on issues stemming from OFCCP regulations. Ms. Mitchell personally oversees the development of hundreds of AAPs each year and is intimately involved in the defense of numerous OFCCP audits. She also spends significant time counseling companies in connection with conducting pay equity analyses as well as government contractor employment obligations.

Ms. Mitchell is the editor and a principal contributor of The Affirmative Action Law Advisor blog and frequently presents on pay equity, affirmative action compliance, OFCCP enforcement trends, and government contractor obligations.

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