2019 Looks to be A Busy Year for OFCCP (and Contractors)

In 2018, under the leadership of Acting Director Craig Leen, OFCCP began its journey of transparency.  We saw it reflected in the release of a Contractor Bill of Rights, nine (9) new Directives by the agency and a Memorandum of Understanding (MOU) between OFCCP and the National Industry Liaison Group (NILG).

On November 2, 2018, civil rights enforcement agencies were asked to describe their enforcement objectives in testimony to the U.S. Commission on Civil Rights during their public briefing:  “Are Rights a Reality? Evaluating Federal Civil Rights Enforcement”.  Among the 20+ agencies that spoke during the commission meeting, Acting Director Leen shared his vision for 2019 and beyond.

During his presentation he mentioned the Government Accountability Report (GAO) and how it addressed the inefficiencies of OFCCP.  Acting Director Leen specifically addressed two items:

  1. Currently they audit only 1-2% contractors per year and many times audit the same companies multiple times.  They believe that, of the roughly 120,000 AAP’s based on 25,000 contractors, many contractors are not fulfilling their AAP obligations at all, are not even doing the basic compliance requirements unless they receive an audit scheduling letter.  Given this information, OFCCP is working with GSA to require contractors to certify every year that they have completed their AAP.  Those who mark “No” or “Not applicable” in the System for Award Management (SAM) database will be audited.   If a contractor marks “Yes”, they may receive a compliance check.  The goal will be to put together a database to collect an AAP from every contractor in the U.S. and determine a way to review them each year.  Note:  Directive 2018-07

  2. Focused reviews – OFCCP currently covers 10 protected classes, of which only females, minorities, protected veterans and individuals with a disability are currently reviewed together in a combined audit process. In addition to these “full” audits, in 2019 OFCCP would like to begin conducting focused reviews that evaluate a single protected group, starting with Individuals with Disabilities since OFCCP knows that the IwD labor participation rate is 30% and unemployment is nearly twice that number. Eventually, OFCCP would like to conduct focused reviews directed at all 10 protected classes. The goal would be that approximately 500 of audits would be focused.   He stated that “because of the way we collect data we can only do statistical audits on sex and race.”  The principal goal here is to increase IWD employment.  Acting Director Leen hopes that employers will not be so legalistic about granting accommodations and hiring.  He said that “when an employer is adversarial, people will not disclose.”    When on site for these focused audits they will interview ADA coordinators EEO officials, interview individuals with disabilities (those who are willing to talk to them).  Contractors who are showing progress and best practices could be recognized by an awards program (currently out for notice and comment).  Note:  Directive 2018-04 and Directive 2018-06

Leen closed the testimony by saying that 2018 was a banner year and he is hoping 2019 is going to be a bigger year. 

2019 looks to be a busy year for contractors, so stay tuned to the DCI blogs for updates.

By Rosemary Cox, Senior Consultant at DCI Consulting Group

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