New Leadership at the OFCCP Had a Busy August

Affirmative Action
HR Compliance

The Office of Federal Contract Compliance Programs (OFCCP) Deputy Director Craig E. Leen has been serving as the interim director for just over a month and is not wasting any time putting his stamp on the agency.

On August 1, 2018, at the 2018 Industry Liaison Group (ILG) National Conference, Mr. Leen spoke to the group about the four pinnacles of change the current administration is focused on, which are: Transparency, Certainty, Efficiency, and Recognition. He also shared a document entitled "What Federal Contractors Can Expect."

On August 10, 2018, the OFCCP announced two new policy directives focused on ensuring equal employment opportunity and protecting Americans’ religious freedom. The equal employment opportunity directive calls for more comprehensive reviews of contractor compliance with federal antidiscrimination laws, and the religious freedom directive protects the rights of religion-exercising organizations and are outlined below.

  • Equal Employment Opportunity: Through this directive, the Department announced that it is implementing a comprehensive initiative, which seeks to ensure compliance with equal employment opportunity and antidiscrimination regulations in all its protected groups. As part of this initiative, the OFCCP will add focused reviews to its compliance activities, with comprehensive onsite reviews concentrating on each of the three enforcement authorities the OFCCP enforces: Executive Order 11246, as amended; Section 503 of the Rehabilitation Act of 1973, as amended; and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended.
  • Religious Freedom: The second directive instructs OFCCP staff—in all their activities—to take into account recent U.S. Supreme Court decisions and White House Executive Orders that protect religious freedom. The Supreme Court issued rulings in 2014, 2017, and 2018 that safeguard the broad freedoms and antidiscrimination protections that must be afforded religion-exercising organizations and individuals under the U.S. Constitution and federal law. Additionally, President Trump has issued Executive Orders making clear the Administration’s commitment to robust protections for religious freedom, as well as ensuring a level playing field for faith-based organizations to compete for federal grants, contracts, programs, and other funding opportunities.

On August 24, 2018, the OFCCP announced three additional directives, including new procedures for reviewing contractor compensation practices, a program to verify that contractors are in compliance with federal affirmative action program (AAP) requirements, and an initiative establishing a recognition program for contractors with high-quality and high-performing compliance programs and initiatives. According to the OFCCP press release, these new directives are part of the Department’s efforts to maximize the effectiveness of compliance assistance outreach and are outlined below.

  • Guidance for Contractor Compensation Practices: This directive further clarifies and provides additional transparency to contractors about the OFCCP’s approach to conducting compensation evaluations; supports compliance and compensation self-analyses by contractors under applicable law, and OFCCP regulations and practices; and improves compensation analysis consistency and efficiency during compliance evaluations. Frequently asked questions about compensation evaluation procedures, including desk audits, onsite reviews, and pay analysis groupings can be found here.
  • Affirmative Action Program Verification Initiative: Federal contractors are required to take affirmative steps to ensure equal opportunity in their employment processes, including the development of an AAP within 120 days of the commencement of the contract, along with annual updates. The OFCCP is charged with ensuring that federal contractors fulfill these requirements.
  • Contractor Recognition Programs: This directive establishes a contractor recognition program that includes awards that highlight implementable best or model contractor practices, a contractor mentoring program that uses contractors to help their peers improve compliance, and other initiatives that provide opportunities for contractors to collaborate or provide feedback to the OFCCP on its compliance assistance efforts.

Key Takeaway
Over the last year, the OFCCP has taken a more employer-friendly, collaborative approach to compliance. The above directives, as well as the two-year extended moratorium of enforcement activities against health care providers operating under TRICARE and its Town Hall Action Plan initiative, are designed to better assist contractors with their compliance obligations. It is anticipated that this cooperative approach to compliance will continue under the new leadership.

Source: Michael Hyatt, HR Government Affairs Director, MRA - The Management Association