OFCCP recently held a day long Compliance Assistance town hall meeting for the tech industry sector. Not only was this an opportunity for contractors to better understand compliance audits directly from the OFCCP, it was an opportunity for OFCCP to listen to and better understand the tech sector. Was it important and impactful? Absolutely!!!
A lot of good information was exchanged during the day long town hall. For the average federal contractor, however, they are most interested to know what OFCCP, specifically Director Craig Leen, had to say about compliance and audits. Here are some notable takeaways:
1) In his opening speech, Director Leen focused on three key drivers behind future audits. The first is Transparency. From prior town hall meetings with prior Director Harris, the OFCCP recognized the frustration and mistrust shared by many contractors. In an effort to tackle those concerns head-on, OFCCP has committed itself to a practice-culture of transparency. Notably, OFCCP has issued a directive on their practice of transparency (DIR 2018-08). Related to a more transparent OFCCP, Director Craig Leen points to the requirement for Predetermination Notice (PDN) before a Notice of Violation (NOV) is issued (Directive 2018-01) and a public clarification of methodology for contractor audit selection. Taken together, a policy of transparency will provide a procedural check of the OFCCP and greatly reduce mistrust.
Additionally, contractors who wish to practice transparency are encouraged with incentives: Early Resolution Procedures (ERP, Directives 2019-02) and Voluntary Enterprise-wise Review Program (VERP, Directive 2019-04). Contractors interested in knowing more about ERP or VERP can contact Biddle Consulting Group for more information.
One of the most critical benefits of OFCCP’s pursuit of transparency is Directive 2019-03—Opinion Letters and Help Desk. It is arguably one of the most misunderstood Directives, as explained by Director Leen. In concept, contractors can reach out to the OFCCP for clarification on any questions a contractor may have and an OFCCP response can be considered as OFCCP “methodologically-compliant.” During a town hall Q&A session, our group asked Director Leen, “Can we apply Directive 2019-03 to get the OFCCP sign-off on a proposed method, if we submitted it to the Help Desk and received a confirmative Opinion Letter?” Director Leen openly answered this with two important points: 1) There will be no retaliation for contractors who reach out to the help desk, and 2) if the Help Desk/OFCCP issues an Opinion Letter confirming a methodology, then it is considered compliant. This is huge, so I will be writing more directly to this in a separate paper.
2) Second, is Certainty and Director Leen explained that there should be no uncertainty when it comes to compliance. He does not want to see ad hoc approaches to compliance audits—preliminary OFCCP audit models driving a compliance audit. Contractors should know exactly where the compliance goal line is and aim for that with no misunderstandings. This has always been a major complaint among contractors, but, as Director Leen pointed out, with Directive 2019-03 there’s no good reason for uncertainty.
3) Third, is Efficiency—audit should not take so long. I have no disagreements, in concept. In an ideal world, contractors should have their AAPs and supporting data (e.g., employee file, hires, promotions, terminations data files), completed and ready for the OFCCP at a moment’s notice. The goal is to decrease the time required of each audit so the OFCCP can cover a greater number of audits more efficiently. As Director Leen indicated, efficiency requires the agency to move away from an Active Case Enforcement (ACE) audit model, which requires heavy investments in both time and effort into each audit, and onto a more efficient model for audit where the OFCCP will seek: 1) quick compliance closure if there are no or light indicators that can be readily explained or 2) escalate to litigation with the Administrative Law Judge (ALJ) if there are indicators that cannot be explained.
The goal, as articulated by Director Leen is to spend less time on each audit (by closing or escalating to ALJ more quickly) and investigate more contractors.
4) Other notable compliance take-aways include a focus on:
- Promotions—Adverse Impact
- Section 503—Rehabilitation Act
Taken together, Director Leen is hoping for a more seamless and minimally disruptive compliance experience for contractors. Indeed, this can be achieved with increased transparency along with certainty and efficiency. The challenge is for these aspirational goals to trickle down into action, where the rubber meets the road. We are patiently waiting.