Affirmative Action News – EEO, AAP, and OFCCP Updates for Federal Contractors

OFCCP Submits Revised FAAP Directive for Final Approval

April 17, 2019 by Matt Nusbaum

Last September, OFCCP submitted a revised functional affirmative action program (FAAP) directive for public comment. This week, the agency submitted that revised FAAP directive to OMB for final approval with “no material changes” from what was proposed last year.

FAAPs permit federal contractors to develop and implement AAPs that better align with their business by structuring their programs by function or business unit rather than by physical establishments. But contractors must first obtain OFCCP approval to develop FAAPs. The current approval (and renewal) process is outlined in OFCCP Directive 2013-01.

OFCCP’s September proposal included several changes to the current FAAP directive that contractors would likely welcome, specifically:

Extending the term of FAAP agreements from 3 to 5 years;
Eliminating the mandatory audit requirement during the term of a FAAP agreement;
Extending the audit moratorium period from 2 to 3 years after a closed compliance evaluation;
Eliminating “consideration” of contractors’ EEO compliance history as part of the FAAP approval process;
Eliminating the reapplication period after the expiration of a FAAP agreement; and
Eliminating the annual update requirement.

In response to public comments, OFCCP is also instituting a 60-day window to approve or deny FAAP applications upon receipt of a “complete package,” a process that contractors regularly report currently takes 12-18 months. This “non-material” change to OFCCP’s original proposal should significantly lower the barrier to entry for contractors considering the FAAP option.

These changes will not become effective until OFCCP receives final approval from OMB. The public has one more “bite at the apple” and can submit comments for OMB to consider. OMB can then approve OFCCP’s proposal as submitted or send the proposal back to OFCCP for modification. Comments are due by May 16, 2019 and can be submitted at regulations.gov.

ODEP Seeking Input for “RETAIN” Demonstration Project; Participation as Good Faith Effort?

April 14, 2019 by Matt Nusbaum

The Department of Labor (DOL) has submitted an Office of Disability Employment Policy (ODEP) information collection request proposal titled, “Retaining Employment and Talent After Injury/Illness Network [RETAIN] Demonstration Project and Evaluation.” The agency is seeking public comment under the Paperwork Reduction Act regarding a new program led by ODEP in partnership with DOL’s Employment and Training Administration and the Social Security Administration to “test the impact of early intervention strategies that improve stay-at-work/return-to-work (SAW/RTW) outcomes” of individuals who experience a disability while employed.

SAW/RTW programs are aimed at returning ill or injured workers to productive work as soon as medically possible during their recovery process by providing “interim part-time or light-duty work and accommodations.” The proposed program will operate through grants to state and local agencies that choose to participate in exchange for detailed information about program administration and outcomes.

Although the project is not currently aimed at the private sector, it raises a potential opportunity for federal contractor employers, particularly those that are currently scheduled for OFCCP’s new 503 (disability) focused reviews.

Employers that have or are developing programs aimed at retaining sick or injured employees should take credit for these efforts in OFCCP audits, especially 503 focused reviews. Such employers could also benefit from participating in the public comment process (offering to share information with ODEP about their programs, successes, and challenges). Participation in the public comment process itself can be a form of good faith effort.

Biddle Consulting Group (BCG) has long partnered with WorkSTEPS, the leading national provider of functional pre-employment and post-injury testing programs used by corporations nationwide. Corporations use WorkSTEPS’ proprietary tests to determine the overall fitness of employment candidates to perform essential job functions and tasks. BCG has partnered with WorkSTEPS on PAVE – a tool designed to develop validated physical ability tests for a variety of jobs. Providers like WorkSTEPS can assist employers that are seeking to review their policies and practices with regard to SAW/RTW programs and/or developing such programs from scratch.

OFCCP Proposes to Collect Detailed Applicant- and Employee-Level Transaction and Compensation Data in 503 and VEVRAA Focused Reviews

April 12, 2019 by Matt Nusbaum

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.

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