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OFCCP Publishes Updated Federal Contract Compliance Manual (FCCM)

OutSolve

FCCM updates protected classes, aligns to new Directives and clarifies other items relating to compliance evaluations and complaint investigations

On December 20, 2019, OFCCP published the updated Federal Contract Compliance Manual (FCCM). The manual’s main purpose is to provide guidance to OFCCP’s compliance officers (COs) regarding compliance evaluation and complaint investigations. OFCCP publishes the manual to reflect revisions in regulations and practices and to provide transparency to contractors.

The following is a summary of the many of the changes, by Chapter, to the recently published FCCM.

[Chapter I – Desk Audit]((https://www.dol.gov/agencies/ofccp/manual/fccm/chapter-1-desk-audit)

Added and/or updated the following:

  • New protected bases (sexual orientation, gender identity, discussing, disclosing, inquiry about compensation),
  • Language describing academic institution evaluations,
  • Language describing the Section 503 and VEVRAA nondiscrimination and affirmative action requirements

Inserted language to align with the following:

  • Focused Review Directive,
  • Transparency Directive,
  • Compensation Directive,
  • Early Resolution Directive.

Referenced the following new tools for the CO’s use:

  • To determine if contractors reported to the GSA that they had developed their AAPs,
  • To check for VETS-4212 reports.

Clarified that if a compliance evaluation closes at desk audit, the CO is not required to complete onsite investigation portions of the SCER.

Chapter 2 – Onsite

Added and/or updated the following:

  • EEO clause to include Section 503 and VEVRAA requirements, and amendments adding sexual orientation, gender identity and pay transparency protections,
  • Onsite confirmation letter template,
  • Pay transparency discussion and onsite procedures,
  • Procedures for interviews when a lawyer or management is present,
  • Language describing the Section 503 and VEVRAA nondiscrimination and affirmative action requirements, such as analyzing data collected on applicant and hires,
  • Language describing the Sex Discrimination Requirements.

Clarified “pre-onsite” in the context of desk audit, and “onsite” when supplemental data requests are made beyond the desk audit stage but before going onsite.

Chapter 3 – Construction

Added and/or updated the following:

  • Description of the Mega Construction Program and scope regarding compliance assistance,
  • Construction subcontract award information relevant to award notifications,
  • Language describing the Section 503 and VEVRAA nondiscrimination and affirmative action requirements.

Edited the SCER to remove specific parts where information must be entered in a newly adopted Excel version.

Chapter 4 – Corporate Management Compliance Evaluation (CMCE)

Added and/or updated the following:

  • New protected bases (sexual orientation, gender identity, discussing, disclosing, inquiry about compensation),
  • Language describing the Section 503 and VEVRAA nondiscrimination and affirmative action requirements.

Chapter 5 – Functional Affirmative Action Program (FAAP)

Added and/or updated the following:

  • New protected bases (sexual orientation, gender identity, discussing, disclosing, inquiry about compensation),
  • Language to align with the revised FAAP Directive,
  • Language describing the Section 503 and VEVRAA nondiscrimination and affirmative action requirements.

Clarified the role of the National Office in Scheduling FAAP Reviews and creating an electronic Chronology Log and providing compliance history of the field.

Chapter 6 – Complaints

Added and/or updated the following:

  • New protected bases (sexual orientation, gender identity, discussing, disclosing, inquiry about compensation) and language to describe protections based on these protections,
  • Language to reflect current agency procedures on referral and retention of complaints,
  • Section on providing contractors a 10-day notice to comply with Title VII and Section 503,
  • Language extending the CO 15 days to perfect a complaint,
  • A DOJ letter template for COs to use,
  • Language describing the Section 503 and VEVRAA nondiscrimination and affirmative action requirements.

Clarified the following:

  • Legal procedure on when to issue a notice-of-right to sue when OFCCP administratively closes a dual filed complaint that is not being referred,
  • Language that states that OFCCP seeks punitive and compensatory damages when acting as EEOC’s agent.

Chapter 7 – Relief

  • Updated references to Section 503 and VEVRAA.

Chapter 8 – Resolution of Noncompliance

Added and/or updated the following:

  • Language to align with the Predetermination Notice,
  • Language that a contractor has five days from the due date of the progress report to submit it unless a reasonable extension is requested,
  • Language to make clear that Show Cause Notices are issued whenever the contractor refuses to provide access to records,
  • A new template notice that shows attachments to the model Conciliation Agreement,
  • Reference to nonstatistical evidence to align with Compensation Directive.

Modified language regarding delegation authority to rescind Show Cause Notices without express approval from the National Office.

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