By Jeremy Mancheski, President of OutSolve
Former EEOC Commissioner Jenny Yang is now head of OFCCP. That’s right – one day into the Biden administration and there is an appointed director. This move alone is significant to federal contractors as it potentially signifies the importance this administration places on affirmative action planning and compliance. Let’s briefly delve into the potential significance to the federal contractor community.
Who is Jenny Yang?
Yang is a Cornell and NYU Law graduate who has served through the Obama and Trump administrations in EEOC. She was replaced as the chair of EEOC in 2017 by Victoria Lipnic (who was herself strongly considered to head OFCCP in the Trump administration). While at EEOC, she worked vehemently on workplace harassment and was often noted in support of the Component 2 section of the EEO-1 form.
What does this mean to federal contractors?
The Trump administration took nearly a year to appoint its first OFCCP Director – Ondray Harris. Without a clear agenda, and until being replaced shortly into his tenure, Mr. Harris’s time at OFCCP was marked by leadership shakeups and limited agency effectiveness or direction. His replacement – Craig Leen – forged ahead in a short period of time on an agenda that included multiple focused reviews and some agency streamlining. He was instrumental in implementing a series of initiatives at OFCCP to address inefficiencies that were exposed in the GAO report. Leen’s Strategic Plan implemented four “Pillars”: Transparency, Certainty, Efficiency, and Recognition. It will be interesting to see if Director Yang will continue the Leen strategy.
Usually, it takes quite a long time to develop and implement an agenda within a government agency. At OFCCP, the first term of an incoming president usually means staff changes, development of an agenda, proposed rulemaking, and policy changes. That starts with undoing much of what the previous administration had worked to complete. For example, Trump’s OMB placed a stay on Component 2 (only to have the stay lifted by the courts, forcing privately-owned employers, including federal contractors, to complete 2 years of filings in 2019).
Yang entered her role as Director of OFCCP on day one and will be making organizational changes to implement the Biden civil rights enforcement strategy almost immediately.
With a quick appointment and prior government agency savvy, Yang can develop an agenda and get to work quickly to make that agenda reality. E.O. 13950, which is Trump’s much-maligned executive order on combating race and sex stereotyping (Executive Order 13950 | U.S. Department of Labor (dol.gov), was already rescinded!
While still very early, here are some possible items high on EEOC and OFCCP’s agenda:
- Annual, Electronic Submission of All Affirmative Action Plans – If all contractors had to submit every AAP to the OFCCP on an annual basis, this would be a colossal game changer in the compliance community. OFCCP would not only be able to monitor every contractor for basic compliance, but they could potentially examine contractors for systemic discrimination on a universal basis for the very first time. The ramifications here are bewildering.
- EEO-1 Component 2 – The Obama administration created it with Ms. Yang’s support. Expect it to possibly return in one form or another during Biden’s presidency. What will your compensation data say to OFCCP if submitted via Component 2 or similar reporting?
- Enforcement – Yang is an attorney. Remember Pat Shiu (OFCCP director under the Obama administration)? During Shiu’s tenure, OFCCP changed significantly from the “kinder and gentler” agency envisioned by the contractor-friendly, Bush-appointed OFCCP Director Charles James. Shiu was an enforcer. Audits became more contentious and lasted longer, while resulting in more and larger settlements. Yang’s OFCCP will likely pick up where Shiu’s OFCCP left off. Are your affirmative action planning and compliance processes audit-ready? Preparedness will be key.
- Diversity – OFCCP has stayed mostly out of the diversity business, but social justice is more than a temporary buzzword. OFCCP may embrace a broader view of diversity in conjunction with compliance efforts. Are your diversity initiatives connecting with your affirmative action compliance efforts; and vice versa?
The Biden administration is signaling big changes at OFCCP. Now is the time to consider your affirmative action planning and compliance posture. This includes diversity, training, and compensation. OutSolve remains available to assist federal contractors with all requirements via AAP outsourcing, Diversity and Inclusion services, EEO-1 (component 1 & 2)/VETS4212 preparation, state-level compliance reporting (California Pay Equity, Minnesota AAP, etc), customized training, and all related consulting and audit support.
Here are some helpful links:
About OutSolve
Since 1998, OutSolve has helped federal contractors proactively comply with the Department of Labor's Office of Federal Contract Compliance Programs' (OFCCP) regulatory requirements. Our consultants bring deep OFCCP expertise and handle the full breadth and width of affirmative planning, so you can focus on your day-to-day activities. For further information, please contact us at info@outsolve.com or 888.414.2410.