The Ogletree OFCCP Bulletin: July 2020

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Here are the latest developments from the U.S. Department of Labor’s (DOL) Office of Federal Contract Compliance Programs (OFCCP).

Results of Early Resolution Procedures

On June 29, 2020, OFCCP announced that its early resolution procedures (ERP) “has been successful in allowing OFCCP to enter into many corporate-wide conciliation agreements.” Directive 2019-02, which went into effect on November 30, 2018, was intended to resolve supply and service compliance evaluations at an early stage, help contractors achieve their equal employment opportunity goals, and expedite the resolution of compliance evaluations.

OFCCP’s announcement also listed a number of results since the agency began using ERP, including the signing of 18 Early Resolution Conciliation Agreements (ERCA), which cover approximately “312,000 employees under monitoring and reporting at over 850 establishments covered by the ERCAs.” OFCCP states that it “expects to have signed a total of 30 ERCAs securing more than $50 million in back pay by the end of the fiscal year in September.”

OFCCP’s Regulatory Agenda

On June 30, 2020, the Trump administration released its Spring 2020 Unified Agenda of Regulatory and Deregulatory Actions for federal agencies. The DOL’s Agency Rule List – Spring 2020 encompasses OFCCP’s proposals, including its plan to update regulations relating to the religious exemption, as well as its procedures to resolve potential employment discrimination. The four proposals from OFCCP are as follows:

TRICARE Rule

On July 2, 2020, OFCCP published the final rule, “Affirmative Action and Nondiscrimination Obligations of Federal Contractors and Subcontractors: TRICARE Providers,” in the Federal Register. The new rule “removes TRICARE providers from OFCCP’s authority” and “establishes a national interest exemption for TRICARE providers” from the obligations in Executive Order 11246, Section 503 of the Rehabilitation Act of 1973, and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974.”

National Industry Liaison Group Virtual Conference

OFCCP Director Craig Leen recently kicked off the National Industry Liaison Group (NILG) 2020 Virtual Conference – Webinar Series in which he addressed a number of upcoming OFCCP initiatives. The NILG, which is an association of federal contractors working in collaboration with industry liaison groups and government agencies, launched the event on July 6, 2020. Leen discussed the following key issues during his session.

VEVRAA Focused Reviews

OFCCP expects to start focused reviews of Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) compliance shortly. By way of background, in August 2018, OFCCP—in Directive 2018-04—informed the contractor community of its intent to conduct compliance reviews focused solely on the VEVRAA regulations. Since that directive was published, OFCCP released its 2019 Corporate Scheduling Announcement List (CSAL) supplement, which identified 500 contractor establishment locations for future VEVRAA focused reviews and provided resources for contractors, including best practices to comply with VEVRAA and work toward the current VEVRAA hiring benchmark.

Additional Focused Reviews

Leen also addressed the agency’s plans to conduct additional focused reviews geared toward promotions and accommodations. The agency continues to conduct Section 503 focused reviews with a goal of increasing the employment of individuals with disabilities.

OFCCP Technical Assistance

Leen also touted OFCCP’s technical assistance capabilities. In this regard, on February 21, 2020, OFCCP released its online training platform, the Contractor Compliance Institute (CCI). The agency created CCI specifically for federal contractors in the hopes of providing meaningful compliance assistance. Federal contractors can create accounts at CCI and register for free courses, which are designed for hiring managers, recruiters, compensation managers, human resources managers, and frontline supervisors and managers.

CSAL Release

Leen’s NILG address also briefed contractors on the possible release of the CSAL before the end of fiscal year (FY) 2020. Based on Leen’s projections, it is possible that contractors may see the CSAL by September 30, 2020. Leen also stated that he expects a CSAL for construction contractors by the end of FY 2020 or the beginning of FY 2021.

Reminder to Implement Updated Disability Self-ID Form

On July 28, 2020, OFCCP reminded federal contractors and subcontractors that they have until August 4, 2020, to incorporate the updated Voluntary Self-Identification of Disability Form (CC-305) for soliciting disability status from applicants and employees. The updated disability form incorporates changes approved by the Office of Management and Budget to increase response rates of self-identification.

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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