OFCCP Weekly Review: May 2021 | Association of Direct Employers

Monday April 26, 2021: the director of the OFCCP prepares the ground for what is to come: the audit selection methodology of the CSALS and OFCCP continues

OFCCP Director Jenny Yang Kicks Off DEAMcon21 (DirectEmployers 2021 Annual Meeting Conference) with a bang! Prior to a record-breaking virtual turnout from DE members, partners, and state and government employees, Ms. Yang not only covered the first 100 days of her tenure, but provided an excellent question-and-answer session. Director Yang also asked DEAMcon21 attendees for live interactive feedback on diversity training. From pandemic recovery to applying audits, here’s what you need to know!

The Agency’s top priority?

Reconstitution. The OFCCP operates at a record level of 451 full-time employees (see WIR 3/12/19 with a summary of the workforce from 2009 to 2018). In addition to hiring (budget permitting), the agency is “taking a fresh look” at the conformity assessment and planning process and plans to “rebuild and strengthen” its enforcement program (see Candee Chambers’ Queen’s Gambit blog with its publication in our WIR 3/8/21 describing the deletion by the OFCCP of 1,750 audits as of March 2, 2021).

The types of audits that OFCCP will continue to use are:

  1. a review of compliance at the establishment level;
  2. a CMCE (Corporate Management Compliance Evaluation), alias “Glass-Ceiling audit of head office facilities: another form of compliance assessment of establishments;
  3. FAAP (Functional Affirmative Action Plan) exams, and
  4. “University compliance reviews”, another form of institution-based conformity assessment.

The Agency will also complete all Section 503 and VEVRAA targeted reviews already underway at the time of the OFCCP’s announcement on March 2, 2021 (see WIR 03/25/19 & WIR 12/11/19) and the 200 ongoing site “compliance checks” (see WIR 09/11/20).

Breaking news: you heard it here first

The transparency of the selection of CSALS & OFCCP audits continues: Director Yang also responded to a question from Candee Chambers that the OFCCP will continue to publish both the CSALs and the OFCCP audit selection methodology. Director Yang, however, gave no indication as to when the OFCCP would publish its next CSAL.

Director Yang wants all entrepreneurs to know that hiring and compensation will continue to be an “essential part” of the Agency’s work. Why? These are areas where it is particularly difficult for employees and applicants to be made aware of potential issues of discrimination, according to Director Yang. Applicants rarely know why they weren’t selected, and salary secrecy has been the norm in many industries for many years, Director Yang mentioned.

Building contractors should be aware that the OFCCP plans to “revitalize the enforcement work of the construction law”. We prefigured this in a April 6, 2020 WIR. This includes a new centralized system for scheduling construction contractors for compliance reviews in response to the Baker DC decision which found part of the OFCCP’s construction methodology unconstitutional (See WIR 04/06/2018) in addition to the 200 compliance checks that OFCCP is just starting to undertake (20 completed until the end of March 2021 according to the OFCCP website).

Diversity training – What are your thoughts? EO 13590 has disappeared (see WIR 1/4/21 and WIR 1/21/21) and the need for diversity training has never been greater, said Director Yang. In an interactive session with DEAMcon21 attendees, Director Yang asked how employers could use diversity training effectively? Stay tuned for the opportunity to have your say on what Director Yang has promised in upcoming stakeholder meetings on best practices and successes. OFCCP apparently intends to host and invite discussions and debates on the appropriate scope of D&I training. However, Director Yang clarified that OFCCP did not intend to publish a rule requiring D&I training of one type or another.

Telecommuting forever? After seeing the effectiveness of employees over the past year in teleworking, the United States Department of Labor (DOL) asked its employees about this topic. Over 60% of those surveyed said they preferred to telecommute all or most of the time. DOL, like many employers, is exploring telecommuting, even after the pandemic.

“The increase in teleworking offers an opportunity to expand employment opportunities for workers with disabilities and workers with caregiving responsibilities,” said Director Yang.

The affirmative action program verification interface program the Trump OFCCP initiated at the Office of Management and Budget (OMB) is still under consideration at the OMB. The now three-year “AAP certification” saga continues, so entrepreneurs are now wondering if this will actually happen. Director Yang gave no timeline for the OMB’s review of the OFCCP’s proposal, nor the form of certification that the OMB could approve, if any.

As proposed in the Trump OFCCP application to the OMB, subcontractors would certify annually (only, i.e. they would not deliver bulk PAAs to OFCCP outside of a review regularly scheduled complaint investigation) that they have and maintain an up-to-date PAA that they could submit through a secure portal if selected for an OFCCP compliance assessment. See WIR 08/10/19 (AAP check “coming any day” now: Director Craig Leen at NELI 2019); See WIR 12/29/20 (OFCCP would like more comments on its proposal to OMB); See WIR 03/15/21 (Announcement of the OFCCP website “Verification of the forthcoming positive action plan”).

While a debate reigned in the entrepreneurial community as to whether OFCCP would only seek entrepreneur ‘certification’ or seek entrepreneurial PAAs by the tens of thousands, Director Yang spoke as if it assumed that only “certification” would occur by warning contractors to be ready to submit their AAPs if the contractor had not properly certified their compliance with their AAP obligations.

Ready to use the new EEO tab to determine the percentage of availability in your PAA for minorities and women? Hang tight. Although some of the recently released products EEO tables 2014-2018 (used to determine the availability of women and minorities) are available, Director Yang noted that not all Census Bureau tools and resources are comprehensive. OFCCP will inform contractors when to start using the new availability data on a date yet to be determined. Director Yang promised that OFCCP would also offer free training in the future.

Gender identity and sexual orientation are classes protected under an amendment to EO 11246 since 2014, director Yang reminded the DEAMcon21 audience. However, given President Biden’s new decree on addressing gender discrimination, including gender identity and sexual orientation (see WIR 01/20/21), stay tuned to hear OFCCP’s plans to implement this decree.

The ombudsman program will continue. Marcus Stergio has handled 95 referrals for audit dispute mediation so far this fiscal year (verses 25 around the same time last year). Mr. Stergio’s title changed to “Ombuds” instead of “Ombudsman”, although the National Office staff online directory still reflects his earlier title (gender).

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