Monday, April 26, 2021: OFCCP Director Sets The Stage For What’s To Come: CSALS and OFCCP Audit Selection Methodology to Continue
OFCCP Director Jenny Yang kicked off DEAMcon21 (DirectEmployers Annual Meeting conference 2021) with a bang! Before a record-breaking virtual attendance of DE Members, Partners, and State and Government Employees, Ms. Yang covered not only the first 100 days in office but allowed for a great question and answer session. Director Yang also requested live interactive feedback from DEAMcon21 attendees on diversity training. From pandemic recovery to audit enforcement, here’s what you should know!
The top priority for the Agency?
Rebuilding. OFCCP is operating at an all-time low of 451 full-time employees (see WIR 3/12/19 with a staffing recap from 2009-2018). In addition to hiring (if budget allows), the agency is “taking a fresh look” at the compliance evaluation and scheduling process and plans to “rebuild and strengthen” its enforcement program (see Candee Chambers’ “Queen’s Gambit” Blog which went viral with its publication in our WIR 3/8/21 describing OFCCP’s scrapping of 1,750 audits effective March 2, 2021).
Audit types that OFCCP will continue to use are:
- an establishment-based Compliance Review;
- a CMCE (Corporate Management Compliance Evaluation), aka “Glass-Ceiling audit of corporate headquarter facilities: another form of an establishment-based Compliance Evaluation;
- FAAP (Functional Affirmative Action Plan) reviews, and
- “university compliance reviews,” another form of an establishment-based Compliance Evaluation.
The Agency will also complete all Section 503 and VEVRAA Focused Reviews already in progress at the time of OFCCP’s March 2, 2021 announcement (see WIR 3/25/19 & WIR 11/12/19) and the 200 construction “Compliance Checks” in progress (see WIR 9/11/20).
Breaking News: You Heard it Here First
CSALS & OFCCP audit selection transparency to continue: Director Yang also responded to a question from Candee Chambers that OFCCP will continue to publish both the CSALs and OFCCP’s audit selection methodology. Director Yang gave no indication, however, as to when OFCCP would publish its next CSAL.
Director Yang wants all contractors to know that hiring and compensation will continue to be a “core part” of the Agency’s work. Why? These are areas where it is especially difficult for employees and applicants to learn about potential discrimination problems, according to Director Yang.. Applicants rarely know why they were not selected, and pay secrecy has been the norm in many industries for many years, Director Yang said.
Construction contractors should be aware that OFCCP plans to “reinvigorate construction enforcement work.” We foreshadowed this in an April 6, 2020 WIR. This includes a new centralized system for scheduling construction contractors for compliance reviews in response to the Baker DC case decision which found a portion of OFCCP’s construction methodology unconstitutional (See WIR 4/6/18) in addition to the 200 Compliance Checks OFCCP is just now beginning to undertake (20 completed through the end of March 2021 according to OFCCP’s website).
Diversity Training – what are your thoughts? EO 13590 is gone (see WIR 1/4/21 and WIR 1/21/21) and the need for diversity training has never been greater, Director Yang asserted. In an interactive session with DEAMcon21 participants, Director Yang asked how employers could use diversity training in an effective manner? Stay tuned for your chance to speak up at what Director Yang promised would be coming stakeholder meetings on best practices and success stories. OFCCP apparently intends to host and invite discussion and debate about the proper scope of D&I training. Nonetheless, Director Yang was specific that OFCCP did not intend to publish a Rule prescribing D&I training of one type or another.
Telework Forever? After seeing how effective employees have been over the past year while teleworking, the U.S. Department of Labor (DOL) surveyed its employees on this topic. Well over 60% of respondents said they prefer to telework all or nearly all of the time. The DOL, like many employers, is exploring telework, even after the pandemic.
“Increased telework presents an opportunity to expand employment opportunities for workers with disabilities and workers with caregiving responsibilities,” Director Yang asserted.
The Affirmative Action Program Verification Interface program the Trump OFCCP got under way at the Office of Management and Budget (OMB) is still under review at OMB. The now three-year “AAP certification” saga continues, such that contractors now wonder if it will in fact occur. Director Yang gave no timetable for OMB’s review of OFCCP’s proposal, or the form of certification which OMB might approve, if any.
As proposed in the Trump OFCCP request to OMB, contractors would annually certify (only, i.e., not deliver AAPs wholesale to OFCCP outside of a regularly scheduled Compliance Review or Complaint investigation) that they have and maintain a current AAP that they could submit through a secure portal if selected for an OFCCP Compliance Evaluation. See WIR 10/8/19 (AAP verification “coming any day” now: Director Craig Leen at NELI 2019); See WIR 12/29/20 (OFCCP wants more comments on its proposal to OMB); See WIR 3/15/21 (OFCCP website “Affirmative Action Plan verification coming soon” announcement).
While debate has reigned in the contractor community as to whether OFCCP would seek just the contractor’s “certification” or seek to obtain contractor AAPs by the tens of thousands, Director Yang spoke as though she were assuming only the “certification” would occur in warning contractors to stand ready to submit their AAPs if the contractor failed to properly certify its compliance with its AAP obligations.
Ready to use new the new EEO tabulation to determine the percentage availabilities in your AAP for Minorities and Women? Hang tight. Although some of the recently released 2014-2018 EEO Tabulations (used to determine the availability of women and minorities) are available, Director Yang noted that not all of the Census Bureau tools and resources are complete. OFCCP will notify contractors when to begin using the new availability data at a date yet to be determined. Director Yang promised that OFCCP would also offer free training in the future.
Gender identity and sexual orientation have been protected classes under an Amendment to EO 11246 since 2014, Director Yang reminded the DEAMcon21 audience. However, given President Biden’s new Executive Order (EO) on combating sex discrimination, including gender identity and sexual orientation (see WIR 1/20/21), stay tuned to hear OFCCP’s plans to implement this Order.
The Ombudsman Program will continue. Marcus Stergio has handled 95 referrals for Mediation of audit disputes so far this fiscal year (verses 25 at this time last year). Mr. Stergio’s title has changed to “Ombuds” versus “Ombudsman,” although the on-line National Office Personnel Directory still reflects his prior (gendered) title.