OFCCP Follows Up Town Hall Meetings with Release of Action Plan

by Pillsbury Winthrop Shaw Pittman LLP
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Based on feedback obtained at a series of town hall meetings to listen to the concerns of Government contractors, OFCCP has now issued an action plan for improved performance.

Takeaways

  • As a result of town hall meetings, OFCCP has identified three areas of focus: training, communication, and trust.
  • These Town Halls and the OFCCP’s actions demonstrate a shift of focus to partnering, training and assisting contractors with compliance, as opposed to an enforcement-based focus.
  • Data from the OFCCP’s enforcement efforts also indicates that the OFCCP is selecting many fewer contractors for compliance reviews.

Last September, OFCCP held three town hall meetings in Washington, DC, San Francisco and Chicago. The meetings were professionally facilitated and well attended, providing a forum for contractors to express their concerns and challenges with compliance with the rules and regulations OFCCP enforces, including Executive Order 11246 (Equal Employment Opportunity), Section 503 of the Rehabilitation Act, and the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA). Following speculation that OFCCP could face budget cuts or even a merger with EEOC, OFCCP conducted the town hall meetings, listened to its contractor feedback and has issued a comprehensive action plan for improving compliance. Among the frustrations and complaints expressed by contractors at the town hall meetings were the fact that technical assistance was outdated and hard to obtain, and that training materials were sparse, and where available, also outdated. Contractors also expressed frustration with a perceived lack of transparency regarding the compliance evaluation process and the communication (or lack thereof) between OFCCP, Contracting Officers, and contractors during this process.

In response, OFCCP has prepared a fairly detailed action plan.

In this action plan, OFCCP focuses on three main areas, which are to:

  • Review and Enhance Contractor Compliance Assistance,
  • Assess and Improve the Quality of Contractor and Compliance Officer Training and Education, and
  • Increase Transparency and Communication

To enhance contractor compliance assistance, OFCCP notes that it had identified outdated technical assistance guides (TAGs) and removed them from the OFCCP website to avoid confusion. Unfortunately, this left contractors with no available guidance. OFCCP will now update and replace TAGs for three main areas:

  • Supply & Service Technical Assistance Guide
  • Construction Technical Assistance Guide
  • Academic Institutions Technical Assistance Guide

OFCCP will also re-launch the “mega-construction” webpage, and develop new infographics addressing the internet applicant definition, recordkeeping and notice requirements.

Secondly, OFCCP will improve training for compliance and to better inform contractors of the national standards OFCCP follows with respect to compliance evaluations and complaint investigations. This action plan is more aspirational, but describes that OFCCP will assess its current training plans, identify gaps in OFCCP staff training skills (and addressing any that exist), standardize procedures for training courses, adopt a competency model, and create a plan to seek third-party accreditation for OFCCP’s national office training program.

Finally, OFCCP’s action plan addresses increased transparency and communication. On this front, OFCCP acknowledged that the contractor community has expressed issues with trust, and the action plan will call for consistency in written communication during compliance evaluations and complaint investigations to improve transparency in OFCCP’s work. To that end, OFCCP has instituted a uniform approach for Pre-Determination Notices (PDNs), which OFCCP says will encourage communication with contractors and provide them with an opportunity to respond to preliminary findings prior to OFCCP issuing a Notice of Violation (NOV). The action plan also envisions a contractors’ “Bill of Rights” (entitled “What Contractors Can Expect”) in order to outline the OFCCP principles of what contractors should expect during any engagement with the agency. The OFCCP has already taken a major step towards transparency by, for the first time, publishing its scheduling methodology for selecting contractor establishments for compliance reviews.

While OFCCP is an enforcement agency, the action plan evokes themes of compliance assistance, partnering, cooperation and coordination, principles that longtime practitioners may recognize, but that many contractors feel had been lacking in recent years. The action plan properly reflects that OFCCP relies heavily on voluntary cooperation for the majority of its compliance—and that many of the tools that facilitate voluntary compliance, such as training, access to up-to-date information, professional and predictable communication, and transparency, had been lacking and can be improved.

While it remains to be seen how well OFCCP follows through on its action plan, the plan certainly contains messages that many contractors will welcome, and it should signal a return to more partnering-based compliance framework, as opposed to the enforcement-based model of recent years. Indeed, a review of enforcement data reflects that the Trump Administration is undertaking many fewer corporate compliance reviews than in former administrations. The OFCCP announced on February 1, 2018, that it mailed 1,000 contractor establishments a Corporate Scheduling Announcement Letters (CSAL), giving courtesy advance notice of a compliance audit. In comparison, in November 2014, under the Obama Administration, the OFCCP mailed 2,500 CSALs to contractor establishments. Nonetheless, contractors should not assume that they can ignore their affirmative action obligations. The OFCCP under its current leadership may be placing more of an emphasis on voluntary methods of increasing compliance, but it still acts as an enforcement agency.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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