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Four of the six OFCCP Regional Directors (RDs) attended the recent 2021 NILG National Conference. Michelle Hodge spoke about the Mid-Atlantic District she is managing until later this month (when she becomes OFCCP Deputy Director). Melissa Speer (SWARM), Aida Collins (newly appointed Southeast RD), and Diana Sen (Northeast) were also in attendance. Carmen Navarro (Midwest) and Jane Suhr (Pacific) did not attend, but forwarded talking points that the RDs in attendance passed on.

The RDs spoke at a meeting with National Industry Liaison Group (NILG) Board members and regional Industry Liaison Group (ILG) Chairs, and at the plenary session that closed the Conference.

The RDs assured NILG Board members and ILG Chairs that the “Transparency Directive”, put into place by former OFCCP Director Craig Leen to ensure communication between the Agency and contractors under audit, is alive and well. This is good news. Many practitioners had noted a drop-off in Agency Compliance Officers’ (COs) willingness to provide required rationales for audit requests, or to allow the ‘automatic’ 30-day desk audit submission extension outlined in the Directive. The RDs attributed this to ‘internal miscommunications’, which they will address.

The RDs also made it clear that the OFCCP continues to use Early Resolution Procedures (ERPs). Diana Sen stated that the “Agency will be more flexible early on”, making Early Resolution a ‘win-win’ when the OFCCP takes issue with an audit.

At the plenary session, the RDs advised that to close audits quickly, contractors should:

  • Prepare an explanation in advance when your participation rates, or your hires, promotions or termination rates disfavor females or a race/ethnic group; the RDs recommend that you include this information with your desk audit submission.
  • Create a narrative documenting your selection process.
  • Make sure that your application tracking and recruiting systems provide the data needed in your audit response. To ensure this, train recruiters and hiring managers on the importance of accurately using disposition codes. (Codes must provide a rational for each selection decision made.)
  • Assess your outreach effort on a regular basis; include the mandatory review of outreach effectiveness in your desk audit submission.
  • Know what factors your employer uses to set pay. Provide a legend explaining what each column in your ‘Item 19’ compensation filing means, and how it relates to your compensation system. (My thought on this: providing this detail may help deter OFCCP from analyzing your compensation system using pay factors that you do not The Agency tends to ‘do its own thing’ in this regard despite its written procedures to the contrary.)
  • Report audit status to senior leadership. (My thought on this: use these meetings to secure leadership’s attention concerning your program and its challenges; be ready to recommend program changes that better ensure compliance.)
  • Review your employer’s accommodation practices to ensure that there is no delay in starting the interactive process of accommodation, and that all reviews are completed and properly documented.

The RDs delivered great news on transparency, 30-day audit extensions and ERPs, and great advice on audit preparation. Their presence and messaging was very welcome at this year’s NILG Conference.

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