Affirmative Action News

Yesterday OFCCP Director Craig Leen and ODEP Deputy Assistant Secretary Jennifer Sheehy participated in a National Industry Liaison Group (NILG) webinar entitled, “OFCCP and ODEP: Section 503 Compliance & Focused Reviews.” The presentation provided a road map of sorts for what OFCCP will be looking for in upcoming 503 (disability) focused reviews. A recording of the webinar will be made available on the NILG website, but a much clearer road map was submitted to the White House Office of Management and Budget (OMB) today.

Director Leen stated during the webinar that OFCCP intends to “look at” contractors’ hiring, promotion, termination, and compensation data for evidence of potential discrimination against individuals with disabilities. While contractors are currently required to prepare (and submit for audit) summary employment transaction data with regard to individuals with disabilities, the proposed 503 (and VEVRAA) focused review scheduling letters would, if approved in current form, require contractors to submit detailed applicant- and employee-level data regarding hiring, promotion, termination, and compensation activity, along with disability (or veteran) self-identification data.

When OFCCP significantly overhauled the regulations implementing Section 503 of the Rehabilitation Act in 2013, the agency noted in the preamble to the Final Rule published in the Federal Register that OFCCP “will not be using the applicant and hiring data [regarding individuals with disabilities] to conduct underutilization or impact ratio analyses.” However, the agency also noted that “enforcement actions will not be brought solely on the basis of statistical disparities between individuals with, and without, disabilities” (emphasis added), potentially leaving the door open to statistical disparities playing some role.

Of further note, the proposed focus review scheduling letters would require contractors that receive the letter six months or more into their current AAP cycle to also submit transaction data for “every completed month of the current AAP year,” as opposed to “at least six months” of “update” data requested by OFCCP’s current compliance evaluation scheduling letters.

OFCCP has also published its proposed compliance check scheduling letter for supply and service contractors. Public comments regarding OFCCP’s proposed scheduling letters are due June 11, 2019.

During the NILG webinar, Director Leen had some additional revelations that should be of immediate interest to federal contractor employers. For instance, he spent a significant amount of time talking about OFCCP’s efforts to clear the books of “aged” cases, defined as audits that have been ongoing for more than two years. Director Leen noted that the agency has “hundreds” of cases that are past the two-year mark, a “big chunk” that have been ongoing for six years or more, and plenty in the nine- to ten-year range. He has directed all OFCCP Regional Directors to close their aged audits, to the extent possible, by the end of OFCCP’s current fiscal year (which ends September 30, 2019).

He recommended that contractors with aged cases contact their regional director and “make an offer.” While Director Leen’s suggestion was certainly made with the best intentions, Biddle Consulting Group recommends that contractors with aged cases proceed with more caution and consult with legal counsel regarding what, if any, opportunity Leen’s directive might provide to resolve long-running audits.