GOVERNMENT SHUTDOWN: WHAT IT MEANS FOR OFCCP

At the time this blog was written, the federal government has been closed for close to two weeks. In an earlier blog DCI staff suggested that federal contractors take a “business as usual” motto when it comes to OFCCP compliance. As many of you know, this isn’t the first time the government has shut down. Harold M. Busch was at OFCCP’s national office during the shutdowns that occurred in 1995-1996 during the Clinton administration. The 1995 shutdown resulted from a conflict between Democratic President Bill Clinton and the Republican-controlled Congress over federal funding levels with a focus on several major programs, including Medicare, education, the environment, and public health. The shutdown occurred after President Clinton vetoed the spending bill sent to him by Congress, resulting in placing non-essential federal government employees on furlough and suspending non-essential government services. Technically there were two shutdowns, the first on November 14 through November 19, 1995 and the second December 16, 1995 to January 6, 1996. Harold shares his take on those shutdowns and considers implications for OFCCP.

Harold M. Busch speaks about the Shutdownby Harold M. Busch, Vice President, Government Relations, DCI Consulting Group [1]

Before I discuss what happened almost 17 years ago, let’s discuss how the contractor community should be responding to the current situation. As mentioned in the previous blog, Contractors should continue to adopt a “Business as usual” motto. In a nutshell, all timelines, timeframes and due dates for any type of submission should be adhered to, even if you have questions on their content or want extensions. The government being shutdown does not relieve contractors of their obligations. Once OFCCP returns to work it may grant individual requests for extensions or even postpone or close some evaluations that have not actually commenced prior to the shutdown. However, it is my experience and professional opinion that each request or scenario will be treated on a case-by-case basis. Additionally, failure to submit documents (e.g., AAP’s, responses to show causes, additional data) or information on a timely basis could result in the Agency initiating or recommending enforcement action.

Obviously, on-site evaluations or scheduled meetings with OFCCP staff that were to occur during the shutdown will have to be rescheduled. As will be discussed in a little more depth later, OFCCP staff will have to spend most of their initial time back at work prioritizing what has to be done, accounting for submissions and missed appointments and rescheduling these events. Believe me, this is a tremendously time consuming task and depending how long the shutdown lasts the amount of time to become fully operationally will be multiple times the days of the actual shutdown.

Now let’s focus on the prior shutdowns while thinking about what may occur this time. I was the Director of Program Operations of the National Office of OFCCP during the 1995-1996 shutdowns and a government manager during all prior shutdowns. We summarize previous shutdowns via a series of questions below.

What happened during the government shutdown 17 years ago?

Although the shutdowns were based on differences between political parties, the political atmosphere was very different than the way it is now. Each of the Departments of the Federal government went through the same process, as done this time and identified essential employees who would be required to report to work even without pay or promise of pay. Similar to the present shutdown, OFCCP, like most of the government, had only a skeleton staff working in the National Office and the Regions.

Did the OFCCP shutdown?

Yes, it did shutdown in a similar manner as what is happening today. Essential employees were identified within each region. The career people and political employees within OFCCP were kept on board.

 
What were the expectations for contractors?The relationship between contractors and the OFCCP was much less antagonistic in the 1990s. Although the Agency was clearly focused on finding systemic discrimination, OFCCP staff was comprised and led by senior career employee management, nationally, regionally and locally, that had long term experience with the contractor community. The marching orders from the very top, including the White House was to be “flexible, fair and firm.” Contractors were still expected to meet timelines and timeframes, but when staff returned issues like extensions and rescheduling were done in a business friendly atmosphere. It was this relationship that allowed the return to work to be relatively smooth, and I am not sure if the current circumstances will allow for this.

Were audits due, even if nobody from the OFCCP was there to receive the audit package via mail?

Yes, they were due then and that is the case now. It was ‘business as usual’ for the contractor community. As mentioned above, the Clinton administration attempted to reduce the harmful effects of the shutdown. Also, 17 years ago, OFCCP was told to not be a bureaucrat and was expected to work with the contractors if they show good faith. Government staff, including DOL and OFCCP, were made aware that there would be potential problems during and after the shutdown and that they were expected to be sensitive and avoid inflating them. The situation this time may be more complicated than it was 17 years ago. Were follow-up data requests due to the OFCCP?
Yes, every request was due as per the timeline established prior to the shutdown. OFCCP had date stamped submissions upon receipt even during the shutdown.
Was the OFCCP flexible with contractors regarding due dates during the shutdown period?
During the shutdown period there was no contact with OFCCP staff so there was no “flexibility” on due dates while in shutdown mode. However, when the shutdown was over the OFCCP was flexible on a case-by-case basis. As mentioned previously, OFCCP closed some reviews, gave some extensions and rescheduled on-sites that could not be performed. It pays for contractors to meet their timelines and timeframes; those that did could be treated with the most flexibility. The first thing that was done after the shutdown was that executives and management evaluated every task and pending action, and considered what should be continued and what should be eliminated or delayed. The key was to prioritize the activities to aid a smoother recovery, focusing on cases with significant findings and that OFCCP had made substantial investments in prior to the shutdown.
How long will it take OFCCP to get back up and running and what other consequences can you think of?

A longer term government shutdown is complex and it could potentially take much more time and effort to get back up and running than it did to shut down. Many due dates will be missed, there may be material that has not been looked at, government employees may be angry due to the shutdown. All of these factors could affect the recovery process. Again, the longer the government is closed the longer it will take to recover.

In summation, the present shutdown has occurred during a different time for federal employees and OFCCP relative to the shutdowns of the 1990s. All of the factors listed above potentially may have an indirect impact on the government return to work, as well as how the contractors will be treated and the length of time it will take for OFCCP to return to “normalcy.”

[1] Special Thanks to Vinaya Sakpal, who is an Intern at DCI Consulting Group, for help with this blog.

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