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The OFCCP’s Section 503 Focused Reviews 2020 Annual Report (“the Report”) is important because it reminds contractors what to have on hand if audited under the program. It also reflects a program at a crossroads – if the OFCCP makes the changes it hints at in the Report, your preparation may need to be very different tomorrow.

Lessons Learned

As of the end of FY 2020, the OFCCP had completed 171 Section 503 Focused Reviews. The Report states that federal contractors found in violation failed to satisfy these requirements:

  1. Engage in appropriate disability-targeted outreach and recruitment
  2. Solicit applicants to self-identify as individuals with disabilities (IWDs)
  3. Document and analyze IWD “jobs filled” data
  4. Audit and report program effectiveness
  5. Maintain an acceptable Section 503 Affirmative Action Plan and support data

Take stock of your program to make sure it meets these requirements!

FYI, there is a wrinkle in the way the OFCCP reviews the third item on the list, the mandated IWD “jobs filled” hiring review. The Section 503 Focused Review scheduling letter limits the employer’s production of this data to the prior AAP year, plus monitoring period if applicable. Some Compliance Officers, however, have been asking for three years of hire data during the audit (probably because 41 CFR Sec. 60-741.44(k) requires that the data be maintained for three years). Whether the Agency is actually entitled to this fuller data production during Section 503 Focused Review or not, best practice is to have the detail on hand.

Frankly, you should be reviewing multiple years of hire data anyway, in order to satisfy the 41 CFR Sec. 60-741.44(f)(3) “assessment of external outreach and recruitment efforts” requirement (which is part of the mandated “audit and report program effectiveness” listed above). If your IWD incumbency is below the Section 503 7% goal and your “jobs filled” data doesn’t show an upswing in IWD hires over time, watch out. 741.44(f)(3) requires that you show the OFCCP what “alternative efforts” you have taken to improve your numbers. If your IWD hiring is poor and your outreach has been the same year after year, your audit may wind up in conciliation.

Better to be prepared. The Report outlines recruitment strategies you should consider using. Of course, Circa can help here – with both compliant outreach and your reporting obligations.

The Future of Focused Reviews

The Report reminds practitioners that Focused Reviews are “part of the Agency’s commitment to efficiency in compliance”, designed to “conclude quickly” and “bring attention to best practices”. In the opinion of many, the success of the program is due to its concentration on policy and practice, as opposed to data. (This way the “jobs filled” metric discussed above serves as a rough indicator of the success of the employer’s programs rather than as a deep dive into data analysis.)

If the OFCCP keeps its data review fairly simple, the “focus” of Focused Reviews will remain on exploration of the policies and procedures that encourage and sustain IWD participation in the workforce. The Report itself also indicates that the OFCCP may seek Office of Management and Budget (OMB) permission to require additional data on hires, promotions, and compensation as part of a Section 503 Focused Review. One could conclude that this expansion would elevate a Focused Review to the equivalent of a standard supply and service review.

The Report states that Section 503 Focused Reviews engage Agency and contractor in a meaningful discussion of ways to increase disability representation. Isn’t this success enough?

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Paul McGovern
Managing Partner
Praxis Compliance

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