On July 31, 2019, OFCCP Director Craig Leen gave the opening remarks at the National Industry Liaison Group conference in Milwaukee, Wisconsin. Director Leen described several new and renewed areas of focus for OFCCP and provided some insight into the agency’s priorities. Polsinelli attended Director Leen’s speech and several panels at the conference in which OFCCP officials weighed in on compliance and enforcement trends.
Director Leen emphatically stated that OFCCP will begin treating discrimination against individuals with disabilities in the same way it treats discrimination against other protected classes like race and gender and will begin to focus the same level of resources as are devoted to other types of discrimination. He described this focus as a “fundamental principle” in the agency’s future planning.
The most immediate sign of this renewed focus on disability issues is the Section 503 focused review process that OFCCP is undertaking for the first time this year. In a panel, OFCCP Deputy Director Tina Williams and other officials described a robust focused review process. To the surprise of many in the audience, Deputy Director Williams explained that every focused review will include an on-site interview component that is expected to last a week or longer. OFCCP regional directors on the panel stated that compliance officers performing focused reviews will seek broad-based information about the contractor’s handling of disability accommodation and leave requests and interview individual employees about their experiences with the accommodation process.
Director Leen advised that the first list of contractors scheduled for VEVRAA focused reviews will be released around Veterans Day. He also expressed OFCCP’s desire to evaluate whether contractors are discriminating against veterans on a systemic basis. Director Leen also stated that OFCCP is interested in whether statistically-significant pay disparities for veteran employees may indicate violations of USERRA’s requirement that employees be held harmless for taking military leave and receive the same raises and promotions they would have received had they not taken the lease.
Director Leen directly addressed the recent Analogic decision in which an OFCCP administrative law judge strongly criticized the agency’s compensation audit approach. He noted that the agency did not appeal the decision and pledged that senior officials have “internalized” its criticisms. Director Leen stated that he believed Analogic’s principles are consistent with the agency’s compensation directive (2018-05), which states that compliance officers should consider how the employer actually sets compensation. Director Leen also noted that OFCCP is preparing additional compensation guidance for public release.
Director Leen also explained that OFCCP will focus on identifying actual discriminatory policies or practices that cause pay disparities, rather than asserting that the mere existence of a statistically-significant disparity alone shows discrimination. That said, Director Leen hedged on whether the agency will continue to find violations in the absence of anecdotal evidence of discrimination, stating that such evidence was necessary in “most” cases. This qualification implies that OFCCP will find violations based solely on statistical evidence in at least some instances. Two senior OFCCP economists echoed this focus in a panel, noting that the agency is moving to the use of “descriptive statistics” that seek to identify the root causes of disparities and hone in on whether those causes are the result of discrimination.
Transparency, Certainty, and Efficiency
Director Leen identified transparency, certainty, and efficiency as being OFCCP’s “bedrock” principles. Director Leen committed to continuing to provide compliance guidance to contractors through the issuance of additional opinion letters and FAQ documents. He also noted that the agency plans to establish an online help desk through which contractors can anonymously seek compliance guidance with the agency’s answers posted for public reference. OFCCP will also release technical assistance guidance on Section 503, VEVRAA, and promotions after it undertakes its first rounds of focused reviews in those areas.
Director Leen expressed his desire for OFCCP to take a more collaborative approach with contractors, particularly at the desk audit and conciliation stages. OFCCP intends to pursue settlements and Early Resolution Programs to seek to resolve alleged discriminatory practices and quickly bring relief to affected employees. Director Leen generally rejected OFCCP’s former “active case enforcement” methodology and stated that the agency will now focus on reviewing the practices of a greater number of contractors in a quicker and more efficient manner.
While Director Leen’s comments provided some reassurance for the contractor community, they also identified several new areas of focus that contractors should seek to address before they face an in-depth focused review. Polsinelli will continue to monitor and report on developments at the OFCCP.