During his first full week in his new role, Acting Director Leen spoke at the 2018 Industry Liaison (ILG) Group National Conference. The ILG National Conference was held in Anaheim, California from July 31 through August 3. The conference provides an opportunity for employers to discuss equal opportunity, affirmative action, and diversity issues with each other and with representatives of the federal regulatory agencies that oversee initiatives in these areas. The head of OFCCP has traditionally been provided with an opportunity to address the conference in its opening session, and Mr. Leen took that opportunity to provide an outlook on his expectations for OFCCP and for organizations that must comply with the laws that OFCCP enforces. In an unexpected move, Mr. Leen also presented at a session on best practices regarding individuals with disabilities, and then closed out the 2018 conference with remarks on what he had observed during the conference.
In his keynote address on the opening day of the conference, Mr. Leen laid out his vision of a partnership between OFCCP and the federal contractor community. He expressed his belief that contractors want to comply with the laws and regulations enforced by OFCCP, and that OFCCP has a responsibility to make clear what the agency expects from federal contractors and subcontractors. He stated that the agency has a responsibility to help the contractor community achieve 100% compliance and that the agency must conduct its work in a reasonable manner. He also stressed that a partnership must be a two-way street. One aspect of this partnership is that federal contractors and subcontractors that meet the relevant jurisdictional thresholds must prepare their annual affirmative action plans. Contractors and subcontractors must also meet their obligations regarding outreach to diverse candidates when recruiting, and must prevent employment discrimination based on race, sex, color, national origin, religion, sexual orientation, gender identity, protected veteran status, and disability status.
Mr. Leen stated the actions the agency is taking or will take are based on one of the following core principles: transparency, certainty, efficiency, and recognition. These principles are based in part on a series of recommendations issued by the Government Accounting Office (GAO) in September of 2016. OFCCP held listening sessions in several cities to gauge reactions to the GAO report and is attempting to incorporate the GAO recommendations into its overall mission.
Principle 1: Transparency
Acting Director Leen made it clear that OFCCP intends to make the reasons for decisions and actions by the agency more transparent. In regard to this theme of transparency, Mr. Leen discussed the following:
- OFCCP issued a directive in February 2018 regarding the use of Predetermination Notices (PDNs). PDNs are issued by OFCCP to inform organizations of the agency's initial finding of employment discrimination during an affirmative action compliance review. The directive mandates the issuance of PDNs in all cases where the agency believes it has discovered individual and/or systemic discrimination. This allows an organization to respond to the agency's findings before formal enforcement proceedings might begin.
- In April of 2018, OFCCP released its methodology behind the compilation of its most recent list of organizations that would be undergoing affirmative action compliance reviews. OFCCP had never released this information in the past. The document provided by OFCCP detailed the steps the agency would take to determine which establishments would potentially undergo a compliance review.
- During the time Mr. Leen was in Anaheim, OFCCP released a document titled “What Contractors Can Expect.” This document provides federal contractors and subcontractors with a sense of how their interactions with OFCCP should occur. Acting Director Leen repeatedly referred to this document as a “Contractor's Bill of Rights” during the conference.
- The agency is considering installing an ombudsman position to provide a third party review of concerns that organizations may raise about their interactions with OFCCP.
Acting Director Leen discussed the agency's commitment to providing more certainty in regard to the outcomes of its regulatory reviews. Regarding the theme of certainty, Mr. Leen discussed the following items:
- The agency is in the process of reviewing Directive 2013-03 (formerly known as Directive 307), which gives instructions to compliance officers on how to evaluate an organization's compensation systems, policies, and decisions. The current directive gives OFCCP wide latitude to conduct compensation analyses as they see fit based on the circumstances of each compliance review. This discretion is so broad that OFCCP has the right to group together what appear to be dissimilar jobs in determining whether there are disparities in compensation. Acting Director Leen stated that OFCCP needs to help organizations understand how OFCCP is evaluating compensation so that organizations can conduct analyses similar to those the agency will perform. For example, the agency must provide more guidance on how positions are grouped together so that organizations can replicate the results of OFCCP's analyses.
- The agency is considering the issuance of opinion letters, similar to those issued by other governmental agencies. Opinion letters would allow OFCCP to publicly provide guidance to the contractor community based on a specific set of facts or a specific part of the federal regulations.
- Mr. Leen stated that the above-mentioned PDN directive was part of the agency's effort to provide certainty to federal contractors and subcontractors that may be facing an assessment that employment discrimination has occurred.
Acting Director Leen stated that he wants OFCCP to be more efficient. He indicated that the agency has a significant number of “aged cases,” and that it is not acceptable to have compliance reviews that have lasted for multiple years. In regard to the theme of efficiency, Mr. Leen discussed the following:
- Mr. Leen stated that the agency was working to close compliance reviews that have been open for many years where there has been no recent action on the part of the agency. He stated that cases that have no indicators of discrimination should be closed quickly.
- Mr. Leen's goal for the agency is to have the desk audit portion of compliance reviews completed within 45 days from the time information is submitted by a federal contractor or subcontractor. Mr. Leen stated that the agency will work with organizations to move cases forward, and that his expectation is that even the most difficult cases should be finished within a year.
- On the subject of efficiency, Mr. Leen expressed frustration over situations where OFCCP has been denied access to information which it can request under the federal affirmative action regulations. He indicated that OFCCP will be reasonable in its requests for additional information, but that organizations cannot deny access to information which OFCCP has the right to review. If an organization believes OFCCP has made an unreasonable request, the organization should contact the relevant district or regional office to make the agency aware of any concerns.
Acting Director Leen stated that OFCCP is looking to install programs that recognize federal contractors and subcontractors for exemplary efforts in implementing the federal affirmative action laws. He stated that the agency may look at bringing back programs OFCCP formerly used to recognize federal contractors and subcontractors. This recognition may involve relief from future compliance reviews at locations that are being recognized. Mr. Leen also stated that the agency wants to advocate for the use of apprenticeship programs and recognize those organizations that have effective apprenticeship programs.
In order to deal with this “free rider” problem, the agency is considering a process in which organizations would be required to certify that they are completing their affirmative action plans on an annual basis.Certification, Focused Reviews, and Disability Initiatives
During his opening presentation and subsequent presentations, Mr. Leen made it clear that the agency expects to reach out to the contractor community. However, Mr. Leen also made it clear that the agency expects 100% compliance with the federal affirmative action laws, especially in regard to the preparation of an organization's annual affirmative action plans. He expressed concern that there were too many “free riders” who took advantage of the agency's inability to conduct compliance reviews of all federal contractors and subcontractors by preparing AAPs only when contacted by OFCCP. In order to deal with this “free rider” problem, the agency is considering a process in which organizations would be required to certify that they are completing their affirmative action plans on an annual basis. This certification might be as simple as checking a box on a form submitted to OFCCP, or it might involve the annual submission of certain components of an organization's AAPs.
Mr. Leen also stated that the agency expects to do focused reviews in which OFCCP would only review compliance with one of the laws that the agency enforces. For example, the agency might only review compliance with the regulations implementing Section 503 of the Rehabilitation Act, focusing solely on issues regarding disability. The agency expects that these focused reviews will include an on-site component where a compliance officer can learn more about an organization's efforts and results.
During his time at the ILG National Conference, Acting Director Leen discussed his interest in programs regarding individuals with disabilities. Mr. Leen has been involved in overseeing programs regarding individuals with disabilities in various contexts during his career, and he indicated that enforcement of OFCCP's regulations regarding individuals with disabilities would be a significant focus area. He expressed his concern that people don't treat individuals with disabilities with respect. He specifically encouraged employers to find ways to increase self-reporting by individuals with disabilities.
Craig Leen's presentations at the 2018 ILG National Conference were met with overwhelming support by the attendees. Mr. Leen's appearance at the conference provided a clear picture of the changing nature of OFCCP and what OFCCP expects. Some key takeaways are:
- The idea that OFCCP and the contractor community must work together as partners was a refreshing change from the previous administration's idea that OFCCP needed to find the supposed rampant discrimination that was occurring among federal contractors and subcontractors.
- OFCCP has already made efforts to be more transparent about its decisions and initiatives, and OFCCP appears to be poised to make yet more information available to the contractor community.
- OFCCP intends to work to close cases in a more efficient manner and intends to be open to employer concerns about burdensome requests for information.
- Federal contractors and subcontractors need to be aware that OFCCP expects a partnership in which organizations are striving for 100% compliance with the affirmative action laws and regulations. Organizations are likely to be asked to certify this is the case, and organizations failing to certify or failing to take action after certifying are likely to find themselves in a difficult situation.
- OFCCP intends to make reasonable requests for information, and expects that organizations will provide the agency access to that information when requested.
Acting Director Craig Leen's new OFCCP will be a changed version of the agency. OFCCP will be more receptive to input and concerns from organizations that the agency oversees and will provide more incentives to help these organizations move towards compliance. However, OFCCP also has expectations for federal contractors and subcontractors that may prove problematic for organizations that fail to meet their basic regulatory requirements.
Please note: Nothing in this article is intended as legal advice or as a substitute for any professional advice about your organization's particular circumstances. All original materials copyright © HR Analytical Services Inc. 2018.