It looks like OFCCP is ringing in the new year with a continued commitment to their resolution of transparency. The agency recently updated its Federal Contract Compliance Manual (FCCM). This manual provides guidance to OFCCP's compliance officers for conducting compliance evaluations and complaint investigations. It is also available to federal contractors to offer compliance assistance. There were over 70 sections updated in this new release, the majority of the updates were made to bring the FCCM up-to-date with regulatory and practice changes.
This week, just in time for back to school, OFCCP released three new initiatives with a student related focus. The first is a set of FAQs for those organizations that have multi-building establishments that are campus-like in nature such as universities, hospitals, and larger companies. The FAQs say that these types of organizations may have a single AAP or multiple AAPs depending on a variety of factors. Contractors should consider the following when determining if their campus should have one or more AAPs.
Hope Solo, a former goalkeeper for the U.S. women’s national soccer team, has filed a lawsuit in California Federal Court against the U.S. Soccer Federation for violating the Equal Pay Act.
At the end of April, we reported that U.S. District Judge Mitchell Goldberg issued a preliminary injunction regarding a City of Philadelphia ordinance, which prevents employers from asking about a job applicant’s salary history and using those salary histories to set wages. Judge Goldberg struck down the provision that employers are not able to ask about a job applicant’s prior salary. He indicated there is insufficient evidence that a worker disclosing a salary that may be the result of past discrimination would mean the prospective employer would offer a lower wage. The City did not sufficiently address if lower wages could be the result of non-discriminatory factors such as qualifications or experience, and thus, he ruled it is acceptable for employers to request salary history.
While we don’t have a crystal ball to predict the future, we can get some general ideas regarding what Office of Federal Contract Compliance Programs (OFCCP) audits will look like in 2018.
OFCCP has a new director, Ondray Harris, who will surely be making some changes. OFCCP has slimmed down considerably, after two rounds of voluntary departure incentives in the second half of 2017.
The Senate Appropriations Committee rejected the proposed merger of the Department of Labor’s, Office of Federal Contract Compliance Programs (OFCCP) with the Equal Employment Opportunity Commission (EEOC). Business and civil rights groups opposed the merger and without Senate support the merger will not happen. The Senate appropriations bill urges OFCCP to find efficiencies since the funding is being reduced. Recommendations include reorganizing the OFCCP’s infrastructure and establishing “skilled regional centers.” The Senate funding bill will eventually need to be reconciled with the House bill that would fund OFCCP at a much lower rate than proposed by the Senate.
On February 17, 2017, 800 corporate scheduling announcement letters (CSALs) were mailed to federal contractors throughout the United States. This left many contractors asking, “why us?” There are a few ways a contractor can be selected for a compliance review, including, but not limited to, individual or class complaint investigations and directed reviews initiated by Office of Federal Contract Compliance Program’s (OFCCP) National Office. Directed reviews are based on reports of an alleged violation, pre–award evaluations in response to requests for pre–award clearance from federal contracting officers, and the monitoring of conciliation agreements and consent decrees. Most establishments make the “list” through the OFCCP’s Federal Contractor Selection System (FCSS).
In FY 2016, Office of Federal Contract Compliance Programs (OFCCP) quietly settled twelve compliance reviews without a press release. This is unusual. Historically, OFCCP publishes a press release with each conciliation agreement. If you missed reading about these resolutions, you missed out on some valuable lessons.
Recently, the U.S. Equal Employment Opportunity Commission (EEOC) published a user-friendly resource document aimed at advising employees and job applicants with mental health conditions of their rights under the Americans with Disabilities Act (ADA). During the fiscal year 2016, the EEOC saw a large uptick in the number of discrimination charges based on mental health conditions. EEOC resolved almost 5,000 charges and obtained approximately $20 million for individuals with mental health conditions who were denied employment or reasonable accommodation.
Federal contractors are required to make outreach efforts to protective groups as part of their Affirmative Action Plan (AAP). Many contractors believe this means posting their vacant positions with as many minority, women, Protected Veterans (PV), and Individuals with Disabilities (IWD) focused groups as possible. Sure this advertises the positions to tons of potential applicants, but it also drives up the number of job candidates that recruiters need to review. Is this really the best use of advertising dollars and recruiters’ time?