The Queen’s Gambit: New OFCCP Director Jenny Yang Signals She is Going to Make Bold Moves at OFCCP as She Scrapped 1,750 Upcoming Audits and May Be Discontinuing the Focused Review Style of Audit

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For the first time in history, the Office of Federal Contract Compliance Programs (OFCCP) REMOVED audits from a Corporate Scheduling Announcement List (CSAL) for Supply and Service contractors. OFCCP’s announcement stated this decision would allow the Agency “to more thoroughly evaluate contractors through the strategic allocation of limited agency resources.” We explain, below, the four reasons why we think this was a very sound and mature judgment from Director Yang, even while many contractors may not like it.

In so doing, OFCCP eliminated from its September 11, 2020 CSAL (known as Release # 1 of its FY 2020 CSAL) 1,750 of the 2,250 reviews it had announced in that CSAL, as follows:

  • ALL 1,250 Focused Reviews appearing on the September 11, 2020 OFCCP CSAL, including 250 Focused Reviews for Section 503, and 500 reviews of each of two “new” types of Focused Reviews the Trump Administration designed but which have not yet made their debut (Focused Reviews for Accommodations and Focused Reviews for Promotions). This is a total elimination of 1,250 Focused Reviews (250 + 500 + 500).
  • ALL 500 Compliance Checks as to Supply & Service Contractors (only), but not as to Construction Contractors. Note: This has been widely mis-reported. While OFCCP’s announcement was clear that it was addressing only Supply & Service contractors (not Construction Contractors), many Bloggers incorrectly extrapolated OFCCP’s correct statement about the elimination of Supply & Service industry Compliance Checks to all Compliance Checks in OFCCP’s inventory. So, Construction industry Compliance Checks continue without change from the September 11, 2020 OFCCP CSAL.

The 500 Supply & Service (“full” or “regular”) Compliance Reviews OFCCP kept active from the September 11, 2020 CSAL included:

  • 402 “Establishment-based Reviews” (aka as “regular” or “full” reviews), which included reviews of universities, colleges and places of higher education, and
  • 67 “Corporate Management Compliance Evaluations” (CMCE) (aka as “Glass-Ceiling” Reviews), and
  • 31 Functional Affirmative Action Program (FAAP) reviews.

See this training chart for the “before” and “after” picture we have used in numerous PowerPoint training sessions for the last 6 months, as NOW UPDATED to reflect what happened in OFCCP’s March 2, 2021 CSAL announcement: a picture is worth a thousand words.

Frequently Asked Questions

In three new FAQs accompanying OFCCP’s March 2, 2021 announcement, the agency anticipated a number of contractor questions:

First, OFCCP made it clear that all Focused Reviews announced in prior OFCCP CSALs—before the September 11, 202O CSAL (see the grid below)–are still active (FAQ #1): My company currently has an open focused review. Since OFCCP is removing focused reviews from the Supply and Service FY 2020, Release – 1 scheduling list, will it be closing all open focused reviews?

Second, Construction contractors take note – the existing List of Compliance Checks for Prime (which OFCCP often calls “Direct”) and Federally Assisted Construction Contractors is still alive and well (FAQ #2). I see OFCCP is removing compliance checks from the Supply and Service FY 2020, Release – 1 list. Does OFCCP plan to remove compliance checks from the Construction FY 2020, Release – 1 list as well?

Third, OFCCP clarified that if your establishment was one of those removed from the September 11, 2020 CSAL by virtue of OFCCP’s March 2, 2021 Announcement, that establishment is eligible for selection for a future OFCCP review since it has not been audited in the last two years. (FAQ #3) My company had an establishment on the Supply and Service FY 2020, Release – 1 scheduling list, which has since been removed. How does this impact the timeline for this establishment to be reviewed in the future?

Similar to the practice which had accompanied previous CSALs former OFCCP Director Leen published during the Trump Administration, and in a very good sign of continuing transparency, OFCCP included its methodology as to how it had selected for review the 500 Compliance Reviews it had chosen to keep active for audit. (As to these audits, OFCCP will commence them when OFCCP District Offices publish “audit Scheduling Letters” to the 500 at-issue contractor establishments). Spoiler Alert: this is the original explanation of methodology which had accompanied the September 11, 2020 CSAL, but now shorn of the language which had spoken to the audit types OFCCP removed via its March 2, 2021 announcement.)

What Just Happened!?

On 9/11/20, OFCCP released two separate Corporate Scheduling Announcement Lists, one for Supply & Service contractors and one for Construction contractors. NOTE: OFCCP divides its audit and regulatory world within its Executive Order authority to “Supply & Service” contractors and “Construction” contractors.

On 9/17/20, OFCCP edited the Supply & Service List to make various technical changes, yet kept the overall total number of each type of what was emerging to eventually become 12 different audit tools (or types) as shown in the linked chart above. The Construction List remained intact.

Now, under the Biden Administration and new leadership at the OFCCP, OFCCP announced an amendment to the Supply & Service List (NOT the Construction List) and eliminated 1,750 audits which the Trump OFCCP had previously announced.

The breakdowns for each List:

Supply & Service

THEN: CSAL 9/11/20 (edited on 9/17/20)

Total Audits = 2,250

NOW: CSAL Amended 3/2/21

Total Audits = 500

500 – Accommodation Focused Reviews

500 – Accommodation DROPPED!

500 – Promotion Focused Reviews

500 – Promotion DROPPED!

500 – Compliance Checks

500 – Compliance Checks DROPPED!

402 – Establishment Reviews (includes Higher Ed)

402 – Establishment Reviews (includes Higher Ed)

250 – 503 Focused Reviews

250 – 503 Focused DROPPED!

67 – Corporate Management Compliance Evaluations (CMCE) “Glass Ceiling” reviews

67 – CMCEs

31 – Functional Affirmative Action Program (FAAP) reviews

31 – FAAPs

Construction: Prime (aka Direct) & Federally Assisted

THEN: CSAL 9/11/20

Total Audits = 200

NOW: 3/2/21 – No changes, still active

Total Audits = 200

200 – Compliance Checks

200 – Compliance Checks

The Bigger Picture

Supply & Service Evaluation Types: From eight to six, potentially back to the “usual” three?

Supply & Service
Evaluation Type

Then: Director Leen

Now: Director Yang

Accommodation Review

New as of CSAL *9/11/20

Dropped

Promotion Review

New as of CSAL *9/11/20

Dropped

VEVRAA Focused Review

New as of CSAL 11/8/19

Still underway, but those not started Dropped

Section 503 Focused Review

New as of CSAL 3/25/19

Still underway, but those not started Dropped

Compliance Check

**Resurrected as of CSAL 3/25/19

Dropped from the 9/11/20 List, presumably gone for this administration

Establishment Review

No changes

Still underway

Corporate Management Compliance Evaluation (CMCE)

No changes

Still underway

Functional Affirmative Action Program (FAAP)

Program Revised in June 2019

Still underway

* Edited 9/17/20
** OFCCP dropped Compliance Checks under President Bush (the son)

Construction Evaluations

Construction
Evaluation Type

Then: Director Leen

Now: Director Yang

Compliance Check

New as of CSAL 9/11/20

Still underway

*Prior to Director Leen, Construction contractors did not have a separate OMB approved audit Scheduling Letter.

Note: Construction Audits came to a halt in 2019 as a result of the OFCCP v. Baker DC litigation which found OFCCP’s manner of selecting construction contractors for audit unconstitutional. See also John Fox’s blog, IG Report Blasts OFCCP Construction Audits, from April 2020.

Why This was a Bold Masterstroke by Newcomer Jenny Yang

First: Mature Managerial Judgment

With audit types proliferating to eventually 12 different kinds, and OFCCP Compliance Officers shrinking to a new 50-year low, the decision to jettison this proliferation of many different types of audit was just pure and simple mature managerial judgment. This is what Ms. Yang was known for as the Chair of the EEOC and for which she won wide acclaim on Capitol Hill, on both sides of the aisle. Ms. Yang’s EEOC experience is now coming to bear on her job at the OFCCP. Now as the Director of OFCCP, she comes to this much smaller (but in many ways more complex) agency with what seems to be an understanding of systems: big systems, whether they involve data, policy issues or enforcement protocols. With OFCCP District Offices collapsing Compliance Officer headcounts from 20-30 to often (currently) to only two to five, sufficient investigative resources to teach each Compliance Officer what to do in each of 12 different audit types which s/he might be asked to undertake just do not exist. Perhaps such a high division of labor would have made sense 40 years ago when OFCCP District Offices were staffed almost always with a minimum of two or three Assistant District Directors, each managing a team of six Compliance Officers. In such a case, the teams could have been divided so that one team could have been proficient in Executive Order AAPs and a second team could have become proficient in all things Section 503, etc. But, today, with only a small number of Compliance Officers in any OFCCP District Office (which you can often count on only one hand), it is just not possible to train Compliance Officers in so many different audit tools. (Sadly, the once robust Denver OFCCP Office (formerly comprised also of a Regional Office) fell to zero staff at one moment in time only recently). The explosion of OFCCP audit tools is a dizzying array for a small agency like OFCCP. Build a pup-tent when you are a one-person army: not the Taj Mahal.

Moreover, the average Compliance Officer is able to undertake and only complete (hopefully) about a dozen audits per year (their recent rates have been closer to 3 to 4 per year, including Compliance Checks and Focused Reviews which involve FAR fewer hours to complete than Compliance Reviews). Training OFCCP Compliance Officers on audit types they have the chance to undertake only once a year is folly, let alone if they only deploy the tool once every several years. Is it any wonder contractors have been reporting that even Compliance Officers were confused with the varying types of audits that exploded out of OFCCP like new Jack-in-the-Boxes? Contractor networks worked overtime in the last few years trying to figure out what was expected of them in each of these new kinds of audits. Contractors going into these newfangled audits asked others what the gun drill was only to be told that no two were the same: they were all “snowflake audits” with auditors doing the best they could but with so few scheduled, they did not have much experience with them.

Second: Prudent Thinking: Don’t Get Out Beyond Your Supply Lines

With OFCCP’s budget for training, training materials development and delivery shrinking, training of Compliance Officers has badly suffered. Without training regimens, you cannot expect a large system of even well-intentioned, experienced and capable investigators to pump out professional quality audits. OFCCP Compliance Officers have complained bitterly for years (the last two decades at least) that they need additional training in the basic, regular Establishment Reviews, and especially in discrimination analyses, not to mention all of the newer review types. Moreover, their OFCCP District Directors have repeatedly said the same thing admitting they need true, quality training so they can gain additional respect in their work with the contractor community. Most Compliance Officers do not believe that reading announcements of new audit types or reviewing a PowerPoint deck is “training” them. One thing contractors and OFCCP field compliance personnel agree on is the absolute need for massive amounts of training of OFCCP investigators.

Third: What Do You Value, What Do You Fear? Focused Reviews and Compliance Checks, As Implemented, Were Weak Tools of Questionable Value to an Enforcement Agency

Even while contractors rejoiced, the Focused Reviews and Compliance Checks which emerged in recent years became “Mickey Mouse” reviews. Of the first 500 Section 503 Focused Reviews, OFCCP “found” only two alleged technical Affirmative Action paperwork violations. (When John Fox was helping to run OFCCP, the agency had a 76% violation rate overall and John issued 10-20 Recommendations for Enforcement PER MONTH pursuant to Section 503, alone.) Contractors knew they were getting away with things in recent years. Contractors also further came to realize that the Trump OFCCP had turned Focused Reviews into mere technical assistance visits! Note: That is exactly what the Clinton Administration had in mind as to Compliance Checks when then OFCCP Director Shirley Wilcher ushered Compliance Checks into existence beginning with OFCCP’s 2000 Rules. There is a place for this tool, but a small place, as Director Wilcher noted at the time. Compliance Checks were one of what emerged in 2000 as four kinds of “Compliance Evaluations.” Along with other sturdy enforcement tools, Director Wilcher envisioned Compliance Checks as an opportunity to raise a contractors’ mindshare about the issues of concern to OFCCP. Director Wilcher, like all OFCCP Directors, quickly came to appreciate the difficult fact that they cannot “have a cop on every corner.” So, the issue for every OFCCP Director becomes how to magnify OFCCP’s presence in a big world full of usually almost 200,000 target contractor establishments. Compliance Checks were 20-minute, on average, on-site visits, asking for a review of one small piece of evidence of compliance with each of OFCCP’s three enforcement programs. It was viewed as an accessory tool, not a mainline audit vehicle. Note: The Bush OFCCP (the son) eventually discontinued Compliance Checks in 2007 because the required on-site visit caused this form of audit to be exceptionally expensive. Charles James, the Bush OFCCP Director, concluded that the “return on investment” of OFCCP time was just not worth the enforcement yield. In the Western United States, with its wide-open spaces and where a freeway off-ramp may not appear for another 100 or even 200 miles, OFCCP Compliance Officers often had to travel for two days: one day in and one day out of an establishment where they appeared on-site for 20 or fewer minutes having flown to an airport near the contractor’s location, rented a car, stayed in a motel/hotel overnight, and incurred 3-5 meal expenses before returning to their offices. Whether the Trump OFCCP National Office conceived of Focused Reviews and Compliance Checks as quick touch-and-go drive-bys, or something more substantive, is not particularly relevant. What counts is what occurred in fact. Certainly, the Focused Reviews and Compliance Checks had the positive effect at contractor establishments of focusing attention on the issue of concern (Veterans hiring or accommodating Individuals with a Disability, etc.), but these were just simply not enforcement audits: they were technical assistance visits plain and simple.

Finally: A Sober and Experienced Manager Knew Her Limits: Don’t Get Over Your Skis

Most contractor pundits were simply dumbfounded when OFCCP announced its September 11, 2020 CSAL. Few in the contractor community could fathom that OFCCP was attempting to bite off another 2,250 audits when the agency had scarcely yet begun the 2019 CSAL audits, let alone finished off the enormous backlog of audits still hung over from the Obama Administration. Euphemistically called “aged audits,” these extremely old and neglected audits became one of the most embarrassing episodes in the history of OFCCP. With thousands of audits dating back over 12 years to 2008 with hundreds and hundreds still pending from 2011 to 2015 alone in the second year of the Trump Administration, OFCCP badly damaged its brand and lost the confidence of many in the contractor community and on Capitol Hill that it could continue to run itself as a standalone agency. OFCCP’s issuance of the September 11, 2020 CSAL was so clearly not necessary to provide audit fuel for OFCCP District Offices that many contractor pundits began to wonder and whisper whether it was a clever Trump OFCCP ploy. Was the Trump OFCCP trying to lock-up and pre-ordain the allocation of OFCCP’s audit resources during the first year of the Biden OFCCP if Trump were to lose a month later in November 2020? And, please recall that at that time in the two months before the November 2020 Presidential election (seems like a year ago now) it was looking to most like a losing battle for President Trump and erroneous polls and Democrats were predicting a rout. With the constant assurances that the “aged audits” were priority one and would finish in 2017, and then in 2018 and then in 2019 and then eventually the contractor community heard would finish in 2021, it was no time for OFCCP to load its plate with more audits. Moreover, OFCCP’s productivity was slowing (OFCCP barely completed 1,000 audits in FY 2016 (Scroll down to Fiscal Year Data Tables and click on Supply and Service Compliance Evaluations Conducted) and barely completed only 700 audits of all types in each of FY 2017 and FY 2018).

So, pulling back these 1,750 weak audit tools was very prudent from the OFCCP’s point of view. Hopefully, without the pressure of those new audits, the Biden OFCCP can finally finish the task of closing out the Obama-OFCCP audits and older Trump OFCCP audits before turning to audits of its making and control.

What Does the Future Hold for OFCCP Audits?

While it is not entirely clear because OFCCP has not so stated, and no leaks have yet occurred from within OFCCP as to what Director Yang intends for the long haul, the handwriting does appear to be on the wall. As we read that handwriting, OFCCP will likely cease use of Focused Reviews and suspend further use of Compliance Checks while returning to OFCCP’s five primary “Compliance Evaluation” tools:

  • Compliance Reviews
  • Complaint Investigations
  • FAAP Reviews
  • CMCE Reviews (although these ought to also be retired, as well, since they are indistinguishable in content from Compliance Reviews: they are simply a different audit target; not a different kind of audit)
  • Compliance Checks (which have their place, with remote investigations now technically possible, and in moderation and not as a substitute for Compliance Reviews)

The more important issue as to audits which is looming on the horizon is whether Director Yang will continue the Trump Administration tradition of truly random selections of contractor establishments for audit? Or, will Director Yang return to prior OFCCP selection protocols targeting companies and industries and risking contractor ire and lawsuits challenging the constitutionality of those audits? By cancelling 2,250 announced reviews, Director Yang also just bought herself the ability in the future to pick the audits she wants to undertake.

And, for the 25th year in a row, OFCCP still has not created neutral administration plans to determine when to go on-site to investigate (except, ironically, in Construction Compliance Reviews) since it no longer goes on-site 100% of the time in Supply & Service audits. See the Baker DC v. OFCCP case decision: a neutral selection for audit interrupted by discretion as to whether to go on-site or affecting the timing of such an on-site audit requires a showing of probable cause (either evidence of a violation, or a neutral administrative plan to come on-site).

OFCCP Director Yang has been on the job less than two months, yet she is already throwing fast-ball strikes. Her current self-imposed period of agency introspection appears very well considered. Look for Ms. Yang to emerge with her plan, by perhaps May 2021, to carry OFCCP forward during her tenure. Canceling the weak CSAL tools was just the right first step.

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