OFCCP’s effort to implement all recommendations recognized but additional work has been identified by the GAO
On September 19, 2019, the GAO released its 2019 report evaluating OFCCP’s implementation of GAO’s 2016 and 2017 recommendations for improving oversight of contractor compliance. The previous reports cited concerns with OFCCP’s compliance evaluation selection process, including its scheduling procedures, lack of staff training, reliance on voluntary compliance and need for oversight in the technology sector.
The GAO report indicated that OFCCP has implemented only four of the 11 recommended changes which included the following:
- The risk geographic imbalances in compliance evaluation assignments – OFCCP revised their scheduling list distribution process to consider its workforce strengths instead of scheduling only on geographic location;
- Outreach and compliance assistance efforts and options for improving information – OFCCP overhauled information relating to non-discrimination and affirmative action requirements provided to federal contractors and workers;
- The clarity of existing contractor guidance – OFCCP evaluated existing guidance to ensure that available information communicated contractor responsibilities; and
- More nuanced AAP goals for technology workers – For the technology sector, OFCCP has provided guidance to contractors regarding the option to include more specific goals in their AAPs.
The report also indicated that OFCCP failed to implement the following seven recommendations which included the following:
- Changing the scheduling list to identify contractors with the greatest risk of non-compliance – GAO recognized that OFCCP has implemented the Voluntary Enterprise-Wide Review Program (VERP) and a new scheduling list methodology but felt that they were inadequate to target contractors most at risk of non-compliance. The report recommended that OFCCP “[e]nsure the process for developing the scheduling list is not weighted by prior scheduling list factors.”
- Developing a mechanism to regularly monitor AAPs – GAO recommends that OFCCP electronically monitor AAPs within 120 days of the start of the contract and update it annually. GAO states that OFCCP is developing an information collection request for the annual collection of AAPs and “anticipates that OMB approval will be timely to align with the completion of the AAP portal.” OFCCP said that the portal is on track to be developed and approved by OMB by the end of FY 2019. Since OMB has not yet received the information collection request, OFCCP’s timetable is not expected to be met.
- Facilitating timely, continual and uniform staff training – OFCCP’s was “developing a learning management system that will allow new compliance officers easy access to training soon after hiring.” To meet the 2016 recommendations, the system must be fully implemented.
- Analyzing internal process data to understand causes of delays during compliance evaluations – OFCCP acknowledged that the procedures in Directive 2011-01 Active Case Enforcement caused delays and claim that they are continuing to study the causes for the delays. The 2019 report states that OFCCP needs to “[d]emonstrate….internal policy changes are addressing the root causes for delays based on data analysis of actual evaluations.”
- Assessing the methodology used to consider industry disparities in compliance – OFCCP indicates that it is “exploring the use of U.S. Census Bureau and administrative data to refine its selection process to focus on industries with a greater likelihood of noncompliance.” GAO says that OFCCP’s new scheduling methodology needs to be refined after it completes the most recent cycle of compliance evaluations.
- Evaluating establishment-based approach to compliance evaluations – To meet this recommendation, OFCCP must obtain approval from OMB of its selection process revisions submitted in June 2019.
- Evaluating the FAAP Program – GAO has noted that OFCCP has taken steps to encourage contractors to use the FAAP program, but notes that “few contractors participate in this program and the agency has not conducted an evaluation of it.”