President Biden revoked former President Trump’s controversial Executive Order 13590 on “race and sex stereotyping” the day of his inauguration. Given the chilling effect that the Order had on diversity and inclusion training, this was not unexpected.
The fate of many other Trump-era changes affecting OFCCP practice, none as controversial and many enthusiastically received by federal contractors, is a lot harder to make out.
For example, the OFCCP’s scheduling letter FAQ still outlines an “automatic” extension for filing audit support data. The OFCCP posted this in June 2020 after two years of discussion with the NILG concerning the difficulties federal contractors face in order to meet the initial 30-day deadline while multitasking other Affirmative Action program responsibilities. The extension seems to have been a real help to contractors, at little cost to the Agency. However, the OFCCP’s FAQs are “sub-regulatory” guidance that the Agency can change with the stroke of a pen. Will this and other more substantive recent changes survive? This early on, it is hard to know.
It is, however, a good time to put the OFCCP’s program changes of the last years into perspective.
For one thing, without Director Leen’s insistence on getting an automated Case Management System up and running in 2019, the OFCCP would not have been able to work remotely during the pandemic in 2020. It seems likely that OFCCP telework and virtual conferences are here to stay. The Agency has shrunk to 400, half of the Obama administration headcount, so it needs all the efficiency it can muster.
There has been so much activity around focused reviews that it is easy to forget they are very new. Little more than two years ago they were an unused, single-line reference in the regulations.[1] Now there are two focused reviews up and running (Section 503 and VEVRAA) and three more the prior administration had the works, which the new administration might see fit to implement (Promotions, Accommodations and Affirmative Action Programs, the last of which would be a cut-down version of a supply and service audit). Overall, the idea of a simple, targeted review is a good one (see Circa’s blog on Section 503 focused reviews). We’ll have to wait and see how the new administration handles them.
The outgoing OFCCP administration’s focus on transparency in Agency operations was very welcome. Examples include posting the Corporate Scheduling Announcement Letter (CSAL) audit selection methodology, which had been shrouded in secrecy; posting a sample of the “Standard Compliance Evaluation Report” (SCER) that Compliance Officers use to rate employers’ Section 503 Focused Review results; and restoring the Ombuds function to provide employers with a means to iron out audit issues. The Omsbuds service received 128 referrals in its first year of operation, and closed 118 of them. Not a bad start.
Another point that should not be overlooked is the Agency’s recent championing of outreach to Historically Black Colleges and Universities (HBCUs) and other minority-serving institutions. Please use the resources found on the OFCCP’s website here and here when planning your recruiting activities.
The big-ticket Agency item of recent years was the Transparency Directive (Dir. 2018-08), now incorporated into OFCCP’s regulations (see Circa’s blog on the “PDN rule”). Long story short, the rules change gives employers an important tool for meaningful discussion about audit issues. It is also a good start for better alignment of OFCCP audit practice to important legal requirements. There is concern, however, that the new administration might change the regulation to limit the transparency and certainty in OFCCP operations that the recent PDN rule changes promise.
Bravo to the outgoing OFCCP administration for deciding not to make use of the EEO Component 2 pay data detail collected for 2018 and 2019. However, there are moves afoot for the EEOC and OFCCP to require additional pay data collection for future years. It is too early to tell, but we could well see new pay data reporting requirements.
Will the Biden administration dust off the Obama-era labor law “violation” reporting requirement (commonly referred to as “blacklisting”)? Will upcoming AAP “verification” requirements mean that federal contractors will have to file electronic versions of their AAPs with the OFCCP? I hope not. But we’ll have to wait and see!
[1] See for example 41 CFR Sec. 60-1.20(a)(4), “Focused review. An on-site review restricted to one or more components of the contractor‘s organization or one or more aspects of the contractor‘s employment practices.”
