The OFCCP has been working overtime (and thus so are we)!

The Office of Federal Contract Compliance Programs released two new Directives on September 19. These follow three new Directives issued August 24, the release of another round of Corporate Scheduling Announcement Letters, and a proposal to change the FAAP approval process -- as well as the other two Directives issued back in August. The following is a summary of the two latest:

Directive 2018-08 – Transparency in OFCCP Compliance Activities

This OFCCP Directive outlines a variety of ways in which the agency ensures greater transparency with contractors. The Directive lists how the OFCCP will be transparent in each phase of a compliance evaluation, from scheduling, desk audit, and pre-onsite, through conciliation. For example, the OFCCP says that it will provide contractors 15 days to respond to data requests during the desk audit phase of a compliance evaluation. For contractors used to receiving demands for information in two or three days, a two-week response period will be welcome. Don’t get too excited, though. The OFCCP also says that it will issue a Notice to Show Cause if the information is not timely received.

The OFCCP further provides that it will make requests for additional information during the desk audit

only to fulfill, and if necessary, clarify, the data requests required by the Scheduling Letter and Itemized Listing. Requests for information that go beyond the requirements of the Scheduling Letter and Itemized Listing (e.g., data for indicator refinements, applications, manager interviews, etc.) should only occur after the desk audit has been completed and the conclusion of the desk audit has been recorded in OFCCP’s case management system.

The Directive reiterates Acting Director Craig Leen’s prior comments that a typical desk audit should be completed in 45 days.

In addition, if the OFCCP seeks information before an onsite, the request “must include the basis for the request, be reasonably tailored to the areas of concern, and allow for a reasonable time to respond.” If the OFCCP determines there are preliminary indicators of discrimination, this must be summarized in the onsite letter so that the contractor will understand the focus of the investigation.

Finally, when it comes to conciliating alleged violations, the OFCCP promises to share information and data with contractors “to assist the contractor in understanding and replicating OFCCP’s findings, sharing factors used to calculate back pay,” and providing other evidence on which the finding is premised.

More reasonable response deadlines, and information about the basis of the OFCCP's claims -- these are welcome changes for contractors and should be expected of any enforcement agency.

Directive 2018-09 – OFCCP Ombud Service

The OFCCP has also announced its plan to staff an Ombud Service in the national office “to facilitate the fair and equitable resolution of specific types of concerns raised by external stakeholders. . . .”

This service is the result of criticism in the Government Accountability Office’s report and the OFCCP’s town hall meetings.

OFCCP understands and wants to be responsive to concerns raised in the GAO report by certain external stakeholders that it does not have an independent mechanism through which external stakeholders, after having exhausted district and regional office channels, can share their concerns with OFCCP about a particular open matter or provide general feedback and recommendations to improve the administration of the agency.

The Ombud would report directly to the Deputy Director at the national office and would be required to create a program to receive concerns and suggestions from external stakeholders, and to promote and facilitate resolution of OFCCP matters at the district and regional levels. The Ombud will not be an advocate for either side of an issue or provide legal advice. It does not appear that the Ombud would provide final resolutions to stakeholders taking issue with agency actions, but rather that it would make “recommendations” that the national office would consider and "act upon."

We will wait to see how this unfolds, but a truly neutral arbiter to handle disputes that escalate beyond the regional level should be helpful to contractors involved in contentious compliance evaluations where the parties have a legitimate disagreement.