Craig Leen, Director of the Office of Federal Contract Compliance Programs (OFCCP) at the U.S. Department of Labor spoke on Monday, July 6, 2020 to lead off the National Industry Liaison Group’s 2020 Virtual Conference. Director Leen spoke extensively on OFCCP’s upcoming plans and areas of focus in compliance reviews. Highlights of Director Leen’s presentation include:
1. During compliance reviews contractors should be able to show efforts to work with Historically Black Colleges and Universities (HBCUs) and members of the Hispanic Association of Colleges and Universities (HACU).
2. Contractors should explore and understand OFCCP’s Indian and Native American Employment Rights Program (INAERP), which allows contractors to give preference to Indians and Native Americans if the contractor is working on or near an Indian Reservation.
3. Audit scheduling letters for Vietnam Era Veterans Readjustment Assistance Act (VEVRAA) Focused Reviews are scheduled to be released in the next couple of weeks. OFCCP released a list of contractors who can expect to receive an audit scheduling letter in November 2019.
Practice tip: Contractors on OFCCP’s audit scheduling list should contact counsel as soon as possible to pre-audit their VEVRAA compliance to evaluate, and fix, potential compliance deficiencies, and prepare to assemble the documentation and data that OFCCP will request.
4. During OFCCP audits contractors should be prepared to defend impacts of any recent layoffs, furloughs and pay reductions.
Practice tip: To proactively defend decisions, contractors should consider performing a disparity analysis and making sure documentation is in order to defend selections that may have an adverse impact on protected groups.
5. Accommodations will be a big focus for OFCCP this fiscal year. OFCCP plans to initiate Accommodation Focused Reviews to evaluate both disability and religious accommodation efforts. OFCCP also plans to publish guidance on accommodation best practices.
Practice tip: Contractors should continue to document all requests for accommodations and the contractor’s response to each such request.
6. OFCCP will prioritize evaluating discrimination based on sexual orientation and gender identity. While both sexual orientation and gender identity have been protected under Executive Order 11246 for several years, following the Supreme Court’s decision in Bostock, OFCCP plans to engage with EEOC on enforcing these protections.
7. OFCCP plans to begin Construction Contractor Compliance Reviews by the end of 2020 or the beginning of 2021.
Practice tip: Construction contractors should prepare accordingly now to identify potential compliance issues and fix them before facing an OFCCP review.
8. OFCCP will continue to focus on disability discrimination and accommodation. Director Leen recommends contractors focus not just on activity recruiting individuals with disabilities, but also promoting and supporting employee resource of affinity groups for individuals with disabilities.
9. Director Leen believes OFCCP is on pace this year for its second highest total settlement recovery as the agency prioritizes Early Resolution Programs.
10. Director Leen encouraged contractors to keep in mind all ten areas of protection under the laws enforced by OFCCP: sex, race, color, religion, national origin, sexual orientation, gender identity, disability, veterans and compensation.