OFCCP Weekly Review: May 2021 | DirectEmployers Association
Monday April 26, 2021: The director of OFCCP prepares the ground for what is to come: the selection methodology for CSALS and OFCCP audits continues
OFCCP director Jenny Yang started DEAMcon21 (DirectEmployers Annual Meeting Conference 2021) with a bang! Prior to a record-breaking virtual turnout from DE members, partners, and state and government employees, Ms. Yang not only covered the first 100 days of her tenure, but provided an excellent question and answer session. Director Yang also requested live interactive feedback from DEAMcon21 attendees on diversity training. From pandemic recovery to applying audits, here’s what you need to know!
The Agency’s top priority?
Reconstitution. OFCCP operates at a record level of 451 full-time employees (see WIR 03/12/19 with a summary of the workforce from 2009 to 2018). In addition to hiring (budget permitting), the agency “takes a fresh look” at the compliance assessment and planning process and plans to “rebuild and strengthen” its enforcement program (see Candee Chambers’ Queen’s Gambit blog which went viral with its publication in our WIR 3/8/21 describing the disposal by the OFCCP of 1,750 audits as of March 2, 2021).
The types of audits that OFCCP will continue to use are:
- an establishment-based compliance review;
- a CMCE (Corporate Management Compliance Evaluation), aka “Audit of glass ceilings of head office facilities: another form of establishment-based compliance assessment;
- FAAP (Functional Affirmative Action Plan) reviews, and
- “University compliance reviews”, another form of institution-based conformity assessment.
The Agency will also complete all examinations targeted on section 503 and VEVRAA already underway at the time of the OFCCP’s announcement on March 2, 2021 (see WIR 03/25/19 & WIR 12/11/19) and the 200 ongoing construction “compliance checks” (see WIR 9/11/20).
Breaking news: you heard it here first
Transparency in the selection of CSALS and OFCCP audits for: Director Yang also responded to a question from Candee Chambers that the OFCCP will continue to publish the CSALs and the OFCCP audit selection methodology. Director Yang, however, gave no indication as to when the OFCCP would publish its next CSAL.
Director Yang wants all entrepreneurs to know that hiring and compensation will continue to be an “essential part” of the Agency’s work. Why? According to Director Yang, it is particularly difficult for employees and applicants to learn about potential discrimination issues. Candidates rarely know why they weren’t selected, and compensation secrecy has been the norm in many industries for many years, says Director Yang. mentionned.
Building contractors should be aware that the OFCCP plans to “revitalize law enforcement work in the construction sector”. We announced this in a April 6, 2020 WIR. This includes a new centralized system for scheduling construction contractors for compliance reviews in response to the Baker DC decision which found part of the OFCCP’s construction methodology unconstitutional (See WIR 4/6/18) in addition to the 200 compliance checks, the OFCCP is just beginning to be undertaken (20 were completed until the end of March 2021 according to the OFCCP website).
Diversity training – What are your thoughts? EO 13590 has disappeared (see WIR 1/4/21 and WIR 1/21/21) and the need for diversity training has never been greater, said Director Yang. In an interactive session with DEAMcon21 attendees, Director Yang asked how employers could use diversity training effectively. Stay tuned for a chance to speak at what Director Yang has promised will be upcoming stakeholder meetings on best practices and success stories. OFCCP apparently intends to host and invite discussions and debates on the appropriate scope of D&I training. However, Director Yang clarified that OFCCP did not intend to issue a rule requiring D&I training of one type or another.
Telecommuting forever? After seeing how effective employees have been over the past year when telecommuting, the United States Department of Labor (DOL) asked its employees about it. Over 60% of respondents said they prefer to telecommute all or most of the time. DOL, like many employers, is exploring telecommuting, even after the pandemic.
“The increase in telework presents an opportunity to expand employment opportunities for workers with disabilities and workers with caregiving responsibilities,” said Director Yang.
The affirmative action program verification interface program The Trump OFCCP set up at the Office of Management and Budget (OMB) is still under consideration at the OMB. The “AAP certification” saga that has now lasted for three years continues, so entrepreneurs are now wondering if this will actually happen. Director Yang gave no timeline for the OMB’s review of the OFCCP’s proposal, nor the form of certification the OMB could approve, if any.
As proposed in Trump’s OFCCP’s request to the OMB, contractors would certify annually (only, that is, they would not deliver a bulk AAP to the OFCCP outside of an exam compliance or regular complaint investigation secure portal if selected for an OFCCP compliance assessment. WIR 10/8/19 (AAP check “coming any day” now: Director Craig Leen at NELI 2019); See WIR 12/29/20 (OFCCP would like more comments on its proposal to OMB); See WIR 03/15/21 (Announcement of the OFCCP website “Verification of the forthcoming affirmative action plan”).
As debate reigned in the entrepreneurial community over whether OFCCP would only seek entrepreneur ‘certification’ or seek PAAs from entrepreneurs by the tens of thousands, Director Yang spoke as if it assumed that only “certification” would take place by warning contractors to be ready to submit their AAPs if the contractor failed to properly certify their compliance with their AAP obligations.
Ready to use the new EEO tab to determine the availability percentages in your PAA for minorities and women? Hang tight. Although some of the recently released products EEO tables 2014-2018 (used to determine the availability of women and minorities) are available, Director Yang noted that not all of the Census Bureau’s tools and resources are complete. OFCCP will inform contractors when to start using the new availability data on a date yet to be determined. Director Yang promised that OFCCP would also offer free training in the future.
Gender identity and sexual orientation are classes protected under an amendment to OE 11246 since 2014, director Yang reminded the public of DEAMcon21. However, given President Biden’s new decree on addressing gender discrimination, including gender identity and sexual orientation (see WIR 01/20/21), stay tuned to learn about OFCCP’s plans to implement this ordinance.
The Ombudsman’s program will continue. Marcus Stergio has handled 95 referrals for audit dispute mediation so far this fiscal year (verses 25 around the same time last year). Mr. Stergio’s title has changed to “Ombuds” as opposed to “Ombudsman”, although the National Office’s online staff directory still reflects his former (gendered) title.