OFCCP’s FY2021 Congressional Budget Justifies Increase in Requested Funds with Promise of More Audits

OFCCP’s FY2021 Congressional Budget Justification, just released Monday, February 10, shows an increase in requested funds as compared to FY2020 (103.6M) in anticipation of conducting more compliance evaluations (i.e., full compliance reviews, focused reviews, and compliance checks) and continuing to build out their full suite of compliance services, to include compliance assistance efforts, compliance verification, and incentives.

In accomplishing the agency’s stated goal of “helping contractors understand their responsibilities, addressing the risk of increased noncompliance by covered contractors who many not be aware of their legal obligations,” OFCCP intends to stay the course on many initiatives that were launched and expanded during FY2019 and FY2020, (as described in last year’s post) such as:

  • Early Resolution Procedures (ERPs), which are conciliatory efforts between OFCCP and a federal contractor to resolve issues of non-compliance using an enterprise-wide, multi-establishment approach, that would purportedly benefit both parties in the long run
  • Compliance assistance, in the form of Town Halls; partnerships with Historically Black Colleges and Universities (UBCUs), Hispanic Association of Colleges and Universities (HACUs); the expansion of the Indian and Native American Employment Rights Program (INAERP); Help Desk services; opinion letters; and the Online Contractor Assistance Portal, where contractors can learn/share information to commonly asked questions
  • IT/data centralization and shared services, which aim to eliminate paper processes, increase efficiency, and afford the agency greater technological capability to connect with the federal contractor community. We predict that this may be a necessary precursor to OFCCP’s “compliance verification” initiative, which could require federal contractors to annually upload evidence of reaching a baseline level of compliance with the regulations.
  • Contractor recognition programs, involving the winners of the Excellence in Disability Inclusion Award (EDI) and the Leadership in Equal Access and Diversity (LEAD) Award to develop best practice compliance materials. OFCCP also hinted that in FY2021 they may explore awards for contractors who demonstrate top-notch compliance with Functional Affirmative Action Program (FAAP) reviews.
  • Focused Reviews, which allow the agency to “reach more contractors without an increase in burden” continue in FY2021. Of particular interest, OFCCP mentioned that by FY2021, focused reviews will more closely examine federal contractor promotion and accommodation processes. Specifically, Executive Order 11246 focused reviews will look into “promotions for women to executive-level positions.”

According to OFCCP, in FY2019 they “completed 1,343, or 65% more audits than in FY2018,” reaping $40.6 million in monetary remedies associated with systemic hiring and compensation discrimination cases. By FY2020, OFCCP estimates it will have completed 1,500 reviews. In keeping with the agency’s comprehensive compliance initiative launched in FY2018, federal contractors can expect more audits in FY2021, as OFCCP plans to double the amount of reviews conducted in FY2020, from 1,500 to 3,000.

OFCCP stated that they are changing the way they measure their workload performance, which has historically been reported as a “percent of systemic discrimination cases” investigated, but as of FY2020 will be reflected as a “percent of compliance evaluations closed with discrimination findings.”  We are also likely to see an increase in scheduling of construction contractor reviews as well, as the supply & service scheduling list and the construction scheduling list will be combined “for the first time in OFCCP history,” and because OFCCP will be focusing on all types of construction contracts, not just “mega construction projects alone” – another departure from tradition. Last, it’s worth noting that “Craig Leen” is conspicuously absent from the Director box on the staffing chart included on page 16, where it currently says “Vacant.” While Craig Leen is still at OFCCP for now, we know his nomination for Inspector General at the Office of Personnel Management is imminent. Stay tuned as we learn more.

By Jeff Henderson, MPS, SHRM-SCP, Consultant and Team Leader

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