Navigating Changes at OFCCP: What’s Ahead for Federal Contractors in 2019

Takeaways from the 2018 ILG National Conference

In early August, several of our experts in affirmative action planning and workforce compliance joined the federal contractor compliance community at #TheHappiestILGonEarth in Anaheim. This is the final post in a 3-part series capturing what we learned from sessions led by OFCCP leaders and other compliance and diversity experts.

At this year’s ILG conference, the theme was Navigating the Waves of Change.

Certainly, the workforce compliance community is no stranger to change, but the theme seemed more than a little prescient in light of leadership changes at OFCCP that took place just prior to the conference.

In his keynote, OFCCP’s new acting director Craig Leen defined his vision for the agency—a vision that signals some shifts as OFCCP pursues its mission of protecting workers and promoting diversity and inclusion.

This vision for fiscal year 2019 focuses on four pillars:

  • Transparency
  • Certainty
  • Efficiency
  • Recognition.

These pillars are echoed in OFCCP’s newly published document—”What Federal Contractors Can Expect”—which defines the agency’s relationship with federal contractors.

As he unpacked each of the pillars, Acting Director Leen highlighted OFCCP’s new and reaffirmed priorities as the agency enforces U.S. equal opportunity laws and affirmative action regulations.

We recommend federal contractors consider these priorities as they plan, implement, and review their affirmative action programs and initiatives during the federal fiscal year ahead.

Transparency – Predetermination Notices and the OFCCP Helpdesk

In the spirit of transparency, OFCCP remains committed to providing contractors with predetermination notices (PDNs) and considering the contractor’s response before issuing a Notice of Violation (NOV). PDNs are a hallmark of the agency’s aim to be transparent and pragmatic, and to emphasize conciliation with contractors.

If you receive a PDN—and even if you don’t—Acting Director Leen encouraged contractors to reach out to the OFCCP help desk, without fear of risk. He also emphasized a timely response to the PDN.

Certainty – OFCCP’s Commitment to Ending Discriminatory Compensation

OFCCP leaders emphasized their ongoing commitment to fighting discriminatory pay practices and enforcing the nondiscrimination provisions of Executive Order 11246, including the ban on compensation discrimination.

The agency aims to achieve this by

  • Focusing on contractors who have been found noncompliant – It’s important to note that less than 4% of cases brought for review are found to have some form of discrimination.
  • Providing more guidance to compliance officers – This includes an ongoing review of training and of procedures outlined in Directive 307, as well as an annual assessment. Directive 307 was rescinded and replaced with a new directive to review the pay practices of federal contractors. OFCCP’s new directive echoes its commitment to transparency by committing to working with contractors on the definition of pay analysis groups that will be analyzed.

So, while contractors can look forward to more clarity and additional guidance around compensation, now is a good time to analyze your compensation data and systems. This is the best way to confirm that your organization’s salary and compensation decisions aren’t inadvertently creating pay disparities that would be exposed in an audit or lawsuit.

Efficiency – Accelerating the OFCCP Review Process

In the 2016 GAO report on the OFCCP, findings revealed that reviews were taking as much as 3-5 years, and even in cases with no indicators to justify holding the case open, the agency sometimes took more than 1,000 days to respond.

In its response to these findings, OFCCP set its sights on raising efficiency and attempting to close audits within 45 days by

  1. Addressing issues in partnership with contractors
  2. Hiring an ombudsman to liaise between OFCCP and contractors
  3. Encouraging and incentivizing contractors to give OFCCP access to information they need to complete audits.

Here again, now is the time to begin assembling the data and information that would be requested during an audit.

Find out how our workforce analytics experts can plan and conduct the rigorous analyses you need for full confidence during an audit.

Recognition – Incentivizing Contractors

As noted in Directive 2018-06, OFCCP is considering a revitalization of programs that recognize contractors with “high quality and high performing compliance programs and initiatives.” These programs would serve to reward individual contractors and provide the broader contractor community with positive models to follow.

For example, awards focused on Section 503 of the Rehabilitation Act could help reduce discrimination against individuals with disabilities, which OFCCP sees as a persistent issue.

See how 6 companies are setting the bar for excellence and innovation in diversity outreach and recruiting—particularly for veterans and individuals with disabilities.

3 Things Federal Contractors Can Do to Focus Your Affirmative Action Planning in FY2019

In addition to the broader themes and priorities noted at ILG, OFCCP leaders offered three specific actions federal contractors should take when planning FY2019 diversity initiatives and affirmative action programming:

  • Verify your annual certification check – Review and update your affirmative action compliance using the System for Award Management. An annual requirement, OFCCP noted that failure to maintain this certification could make your organization a target for an audit. Since the conference, the agency issued Directive 2018-07, under which it will establish a system to verify contractor compliance with regulatory requirements governing AAPs.
  • Consider using a functional affirmative action program (FAAP) – Depending on your organization, this may be a more efficient and effective approach to ensuring compliance than developing plans by location. Since ILG conference, OFCCP has continued to encourage the use of FAAPs.
  • Align your affirmative action program with OFCCP’s focused reviews – According to Directive 2018-04, OFCCP will focus reviews in the coming fiscal year in three areas: Women and minorities, individuals with disabilities, and veterans.

The More You Know: Keeping Abreast with OFCCP

As workforce compliance professionals all know, keeping up with developments at OFCCP is critical to mitigating risk and ensuring you’re prepared in the event of an audit.

Our experts are committed to monitoring and sharing updates on shifting priorities, additional guidance, and best practices to help our clients build strong affirmative action programs and foster excellence in workforce diversity.

Photograph of Bruce Kile, Co-Managing Director of AffirmityAbout the Author

Bruce Kile oversees technology at Affirmity in his role as Co-Managing Director. He has direct responsibility for technology operations, support, and software product development. He leads a team of developers and quality assurance engineers who deliver affirmative action, EEO, and diversity planning products to clients. He also manages support and operations for Affirmity software products and data centers. With more than 35 years in technology leadership and 20 years focused on affirmative action and diversity, Mr. Kile helps clients achieve their goals using Affirmity technology.