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The Trend is Obvious. A Brief Discussion on the 2016 OFCCP Enforcement Strategy

Scott Kushner

Discussing the 2016 OFCCP Enforcement Strategy

The OFCCP’s 2016 Congressional Budget Justification was the latest signal that the United States Department of Labor is investing heavily into its enforcement wing and the already significant emphasis placed on the OFCCP by President Barack Obama’s administration appears to be growing.

Once again, the budget is slated to increase, growing from $104 million in 2014, to $106 million in 2015 before ballooning to $113 million in 2016.

While it doesn’t necessarily mean there will be more compliance reviews - with the OFCCP slated to conduct 4,290 audits, equal to the number forecast for 2015 - the swath of regulatory changes that were enacted in 2014 combined with the looming new points of emphasis show the depth and reach of those reviews should be greater.

Last year, the agency claimed it completed 93 percent of its expected audits (3,987 of them) which helped it collect $11.9 million in back pay settlements for more than 23,000 victims of discrimination by the end of the year.

“(OFCCP) created nearly 1,300 job opportunities,” the budget document stated, “supporting the Department’s goal of breaking down barriers to fair and diverse workplaces.”

In 2016, the office hopes to grow those numbers using a direct enforcement approach that includes an emphasis on compensation discrimination and the highly-publicized “pay gap” that has worked its way into speeches stretching from The State of the Union to the Academy Awards.

“Although laws that protect workers from pay discrimination have been on the books for more than 50 years, persistent pay gaps for female and minority workers persist,” the OFCCP budget document states. “The pay gap is a tangible problem that continues to shortchange American workers and their families. Census data on annual earnings shows that women working full-time earn approximately 78 cents on the dollar compared to men.”

After pulling in $1.5 million in equal pay enforcement in 2014, the expectation of additional reporting has arisen. An Equal Pay Report is expected to assist in further evaluations and with 10 proposed staff members potentially added to the enforcement team, it should boost the OFCCP’s production.

Considering 2016 presidential candidates like Hillary Clinton have already begun focusing on the pay gap in public remarks, the emphasis on compensation from the OFCCP isn’t likely to fade anytime soon. And now that the agency feels it has addressed the issues preventing it from properly attacking the problem, there’s a newfound justification to re-examine the issue.

“In FY 2016, OFCCP anticipates the results of a three-year effort to completely overhaul its approach to assessing whether contractors engage in systemic compensation discrimination in violation of EO 11246, a historically under-investigated personnel practice,” the budget document stated. “In FY 2013, OFCCP rescinded outdated and ineffective guidance and announced revised procedures and protocols. Henceforward, OFCCP engaged in extensive training of compliance officers equipping them with the tools to better investigate systemic pay discrimination and built an extensive program of technical assistance.

“OFCCP saw results of the increasing scope and quality of systemic discrimination investigations and in FY 2014, OFCCP recovered nearly $1.5 million in back pay and salary adjustments for pay discrimination cases – a substantial increase over the prior year.”

While the pay gap may be the most attention-grabbing portion of the OFCCP’s emphasis, it’s far from its only priority.

An Executive Order extending non-discrimination protections to Lesbian, Gay, Bisexual and Transgendered (LGBT) to contractors’ employees will be now reviewed in audits.

There’s also a focus on eliminating discrimination in the constructions trades. OFCCP is likely to release new regulations in 2015 to adjust regulations in the field that haven’t been updated in over 30 years, which will cause some upheaval in that industry.

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