OFCCP Director shares the Agency’s views on compliance evaluation, audits, uneven treatment among regional offices, remedies, CO’s performance measurements and working with other government agencies
As we reported in our previous blog, then Acting OFCCP Director Craig Leen participated on November 2, 2018 in the U.S. Commission on Civil Rights briefing titled “Are Rights a Reality? Evaluating Federal Civil Rights Enforcement.”
The following is a more detailed recap of the key points of Leen’s testimony by topic. Compliance Evaluation
• 25% of all violations are technical; 2% are based on discrimination.
• OFCCP will increase the number of reviews to 3,500 with 500 focus reviews and compliance checks.
• Even if a contractor certifies that they have an AAP, they can still receive a scheduling letter.
• OFCCP published the scheduling methodology and will continue to publish it going forward. “Contractors will be able to see that we are acting fairly and that we are applying neutral principles which we are required to do. And we are publishing the list of everyone that is being audited so that there is clear transparency.”
• Agency’s current approach is to take the best of ACM (Active Case Management – Bush Administration) which resulted in more audits and ACE (Active Case Enforcement – Obama Administration) which led to fewer audits. Both ACM and ACE found discrimination in 2% of the audits.
• Audits will continue to include compensation analyses using regression.
Uneven Treatment among Regions
• OFCCP addressed contractor’s concerns about being treated dissimilarly in different regions by publishing Directive 2018-01: Use of Predetermination Notices (PDN).
• The Directive indicates that OFCCP will inform contractors of any deficiencies found prior to issuing a Notice of Violation (NOV). The company can respond in advance of the NOV which will be reviewed by “the regional and national office to ensure that we have quality control.” Based on the contractor’s feedback, OFCCP will: (1) issue the NOV, (2) amend the original NOV or (3) not issue the NOV if they are convinced that no discrimination has occurred. Leen admitted that number 3 above has not yet happened but he said that it is always a possibility.
• OFCCP expects 100% relief if discrimination exists.
• With respect to back pay, OFCCP will try to settle it “knowing that there is a battle of experts.” Compliance Officer’s Performance Measurement
• OFCCP used to reward performance based on the number of closed cases. When that was taken away from the CO’s, cases aged and discrimination persisted until settlement was reach.
• Leen feels that it is important to move cases forward and is looking to adopt a “combined index matrix” that does reward for case closures and also rewards for bigger cases. “OFCCP remains committed to the large compensation cases.”
Working with Other Government Agencies
• OFCCP is meeting with the Women’s Bureau, VETS and ODEP for “these focused reviews.” They are putting together a list of best practices as well as legally required model policies.
• OFCCP is working with the Women’s Bureau on parental leave. The agency has noticed that in certain industries, law and financial services, there is a different tract for women.
• OFCCP is also working with VETS on USERRA violations [See below webinar information on USERRA]
• OFCCP is committed to inter-agency work.
For more information about USERRA, participate in the upcoming National ILG webinar titled “DOL VETS Overview of USERRA”