This week, OFCCP created a webpage to provide contractors more information about the “new” compliance check reviews that will be completed as part of the current round of audits. OFCCP has had the capability to conduct compliance checks for many years but has not opted to schedule them in the recent past. With this round of reviews, OFCCP re-introduced the Compliance Check, to be used in 500 of the 3,000 audits to be scheduled in the coming months. The agency has indicated they intend to schedule up to 1,000 Checks per audit list in the coming years, as a means of ensuring compliance across more contractor establishments.

The U.S. Supreme Court has agreed to take on two issues that directly impact Federal Contractors this week. The first case is based on the Civil Rights Act of 1964 and debates the question of if that statue extends anti-discrimination provisions based on sexual orientation or transgender status. Federal appeals courts have come to opposing conclusions on this provision, from New York, Georgia, and Illinois.

 

This week, OFCCP published a request to extend the Functional Affirmative Action Program (FAAP) process with no changes to the existing requirements. The FAAP is an alternative to typical establishment-based AAPs; contractors provide detailed information to the agency and can receive approval to create functional, rather than geographic, plans. The current Office of Management and Budget (OMB) approval for the FAAP documents expires on April 30, and OFCCP has applied to extend the authorization for another three years. 

Making good on the promise at the recent town hall meetings, OFCCP recently published proposed updates to the scheduling letters, opening a 60-day comment period on these updates. It’s important to note that these changes are proposed and comments from the public are due by June 11. Given the nature of these changes, employers, law firms, consultants, employer associations, and civil rights organizations will likely be weighing in on this change. OFCCP’s current scheduling letters expire (that is, they are due for renewal of the OMB approval) on June 30. We believe it is unlikely that changes to the letters will be implemented by then and anticipate a temporary extension for the existing letters. So, for the foreseeable future, audits initiated in the next six to nine months (including those locations on the recently published CSAL) will probably be conducted under the existing letters.

Continuing with the agency’s commitment to transparency, OFCCP announced two more Town Hall meetings to gather input from the contractor community. These meetings will be held in New York City and are designed to provide a forum for contractors in the financial and legal industries to provide input to the agency on what is important for the agency to consider as they continue to refine their enforcement focus for 2019. 

In yet another signal the agency is serious about focused reviews, OFCCP added a web page to its site that compiles a number of resources related to IWDs. The new page offers ten different items, including the following:

Just in time for Halloween, OFCCP has been busy with what some may think are scary activities. Contractors with locations on the latest CSAL list are beginning to receive the initial phone calls to schedule their compliance reviews. The scheduling letters were said to start being mailed out on October 22, 2018.

It is almost time for the decennial census. While this survey of the American population is no longer used specifically in Affirmative Action Plans, some area of controversy surrounding the Census may make their way into the requirements for federal contractors—or at least for employers as the workforce continues to become more diverse. While this post discusses possible changes, it’s important to note nothing is final as of this writing, as at least six lawsuits are currently challenging the 2020 census form.

September 26 Update: OFCCP has relased an updated verison of the list that corrects the city and state issue. No word on if this update resets the 45 day notice provided when the letters were first mailed on September 7. Contractors are encouraged to review the revised list to determine if any locations are on it, however, it does not appear any new locations are included.   

In the latest demonstration of agency commitment to transparency, OFCCP made the 2017 and 2018 Corporate Scheduling Announcement Letter (CSAL) lists public this week. Contractors should review the lists to determine which of their facilities will be audited by OFCCP in the coming months.

Amidst a flurry of recent activity, OFCCP added a new section to their website that provides access to several resources for federal contractors and federal agency contracting officials. This is part of the agency’s ongoing efforts to provide transparency and enhance affirmative action compliance assistance available to contractors, and includes the following: