The Federal Contract Compliance Manual (FCCM) is the primary document used to train OFCCP compliance officers (CO) and as a reference document for COs in the field. Meant to be a comprehensive manual for all things OFCCP enforcement-related, it is also a somewhat unwieldy document that unfortunately has not often been updated to reflect current OFCCP policy and practice. That appears to be changing.
The OFCCP recently updated the FCCM with a near overhaul. The basic structure is still the same, but dozens upon dozens of sections have been updated to align with recent OFCCP directives, policies, and practices. And the agency has added a new section at the start of the online manual titled, “FCCM Update Alerts,” indicating that updates might be more frequent and timely in the future.
The updates include things like inserting new protected bases to align the FCCM with current regulations (sexual orientation, gender identity, and being an individual who discusses, discloses, or inquires about compensation), or aligning the FCCM with the OFCCP’s directives (such as transparency, focused reviews, etc.) or the agency’s various technical assistance guides. But other updates are more telling.
For example, the revised FCCM now includes reference to a new tool that COs can use to determine if contractors reported to the General Services Administration (GSA) that they had developed their AAPs. Direct federal contractors are required to certify to the GSA that they either have an established affirmative action program in place, or that they are not covered by that requirement. OFCCP Director Craig Leen announced at the 2018 National ILG in Anaheim, CA that the agency intends to identify and audit contractors who fail to certify. However, this verification tool could be used the “other way” as well, identifying contractors under audit who have certified that the organization has an AAP in place, but then requests additional time to produce an AAP. Note that the GSA certification in question is done under penalty of perjury.
The FCCM also includes updated procedures for management interviews when contractors want to have a lawyer or representative present. The FCCM now states that having a company representative present during interviews of employees or managers (being interviewed outside of their role as a representative of the company) is not allowed as a matter of course, but that such employees can request during the interview that a company representative be present. The CO is instructed to make sure that the contractor is not coercing the employee into making such a request. While this could be determined before the interview, the agency would likely require some alone time with the employee for that purpose.
The updates also include some key documents that are particularly helpful for contractors wanting to navigate the OFCCP audit experience. Notably, the agency overhauled the Standard Compliance Evaluation Report (SCER), the form COs have to complete during the course of an audit and that become the primary record of what occurred during the review. And the OFCCP added a Sample Onsite Review Plan to be used by COs as a template, which should be useful for contractors to anticipate what the onsite experience might be like for them. Finally, the OFCCP added a new Compliance Check Control Sheet, basically a SCER for compliance checks.
The updates are too numerous to list here, though we have highlighted a few. For a full description of updates, go directly to the update section of the FCCM here.
All in all, the updated FCCM should now be the most current repository of OFCCP policy and procedure and should be the starting point for any contractor facing an audit or with compliance questions. If the new “Updates” section is any indication, the OFCCP appears to intend to keep it that way. Now, rather than cobbling together what you think the OFCCP might do from various guidance documents, the FCCM should provide the broad strokes with guidance documents providing more “flesh” where necessary. Unfortunately, the FCCM appears to have lost search functionality, making the large document a bit more cumbersome to use.
Access the full FCCM on the OFCCP website here.