In August of 2018, OFCCP announced that future scheduling lists for compliance evaluations by the OFCCP would include reviews focused solely on compliance with Section 503, “to ensure that federal contractors fully comply with equal employment opportunity obligations and consider other best practices to increase employment of qualified individuals with disabilities”. In March 2019, when the next and most recent list of contractors scheduled for review was published, 500 of those reviews were Section 503 focused reviews. The agency has indicated that focused reviews will continue and the numbers will increase with future scheduling lists.
Earlier this week, the Office of Federal Contract Compliance Programs (OFCCP) issued an opinion letter that serves as Director Leen’s first attempt at directly addressing the use of Pay Analysis Groupings (PAGs) in audits. This is the agency’s second opinion letter since a November 2018 directive that committed to providing guidance to federal contractors through these opinion letters.
Specifically, this letter reviews the question of whether contractors can work directly with the agency to establish a PAG structure that would be deemed acceptable prior to an OFCCP audit. Director Leen writes that contractors can submit their PAG structure to the agency for review and feedback, to be considered in future audits. However, he also writes that the agency cannot “conclusively agree” that it will use any predetermined PAGs in future compliance reviews as the factors affecting that workforce and its compensation might have changed since review of the PAGs. OFCCP analyzes compensation data based on the systems and structures that were in place during the period under review, so that information would take precedence over any previously reviewed or “approved” PAGs.
After the first round of comments, OFCCP recently published revisions to proposed updates to the scheduling letters, opening another 30-day comment period before any revisions will be finalized. OFCCP originally proposed changes to the scheduling letters in April with comments received through June 11. The revisions incorporate changes made as a result of comments to the initial proposals, several coming from Berkshire Associates. Comments from the public for these versions are due by July 29.
Join VP of Client Services, Cheryl Boyer and Managing Consultant, Sonia Chapin, both of Berkshire Associates, at the New Jersey ILG Quarterly Meeting on June 7, 2019. Cheryl and Sonia will present, “Section 503 Focused Reviews: What We Know and What We Can Predict.” During this session, the expert duo will give an overview of the directive and what it means for federal contractors. They will also share insightful predictions on what we might expect from OFCCP and what federal contractors can do to prepare. Click here for registration information, or contact Rehana Iqbal, Vice-Chair Membership, at firstname.lastname@example.org.
RSVP today and attend the Arkansas ILG 2019 Summer Program and Meeting where speaker, Beth Ronnenburg, President of Berkshire will present two topics: “Current State of OFCCP Audits: Tips and Strategies,” and “Individuals with Disabilities Compliance and Focused Reviews: The Game Changer” on Wednesday, June 12. In the first presentation she will discuss the OFCCP directives and how they impact compliance reviews. Beth will also provide practical tips on how contractors can prepare for and manage a successful outcome of their audit.
Register and attend the New England ILG Spring Program where Berkshire’s Senior HR Consultant, Rachel Rubino will be speaking on Current OFCCP Audit Trends on Wednesday, May 22, 2019.
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.
As we continue to review OFCCP’s recently-released scheduling list and the methodology the agency used to develop the list, it appears the OFCCP will first be scheduling the 500 Compliance Checks, 83 Corporate Management Compliance Evaluations (CMCE), and 72 Functional Affirmative Action Plan (FAAP) Reviews. In the middle of the last paragraph of the OFCCP’s Methodology for Developing the Supply and Service Scheduling List FY 2019, Release-1, available at: https://www.dol.gov/ofccp/scheduling/index.html it states: