Georgia Tech Procurement Assistance Center

What do contractors do now? Interpreting OFCCP’s compensation discrimination directive

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For the third time in the last 10 years, the Office of Federal Contract Compliance Programs (OFCCP) has revamped its guidance on compensation investigation and enforcement by issuing Directive 2018-05 and publishing frequently asked questions (FAQs) on the new directive.

This internal agency directive, while not having the force of law that a court holding or regulation would have, does provide federal contractors with some information on how OFCCP may evaluate their compensation in OFCCP audits. This directive will apply to compliance evaluations scheduled on or after August 24, 2018, and may be used by OFCCP in earlier, open cases to the extent it doesn’t conflict with prior guidance or procedure.

On Which Pay Cases Will OFCCP Focus?

In the directive, OFCCP offers general guidance on the legal theories under which it will pursue compensation discrimination and how those align with program priorities. Stating that compensation disparities can be created through inequities in monetary compensation, inequitable training or advancement opportunities, and assignment/placement differences, OFCCP reiterated its reliance on statistical analyses reflecting a statistically significant difference of two standard deviations or more as well as non-statistical (or anecdotal) evidence of discrimination. (Anecdotal evidence could be testimony regarding biased statements or remarks, examples of differential treatment, testimony about individuals who were given misleading or contradictory information about employment or compensation practices, etc.)

Signaling a potential shift in agency practice, however, the directive notes that “OFCCP will be less likely to pursue a matter where the statistical data are not corroborated by non-statistical evidence of discrimination unless the statistical evidence is exceptionally strong.” (OFCCP does not define the phrase “exceptionally strong.”) Moreover, a footnote explains that OFCCP may pursue a case without anecdotal evidence if the agency detects patterns of discrimination over several years or at multiple contractor establishments. Finally, OFCCP may conduct comparative analyses of small groups of similarly-situated employees to determine if pay differences due to discrimination exist.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=733422

Something old, something new: Contractor recognition and AAP verification on the horizon at OFCCP

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On August 24, 2018, the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) issued three new directives, 2018-05, 2018-06, and 2018-07.   While directive 2018-05 has received most of the attention because it focuses on reviewing a contractor’s compensation practices during a compliance evaluation, directives 2018-06 and 2018-07 should not go unnoticed.

During OFCCP Town Hall Meetings earlier this year, contractors suggested a return to recognition programs such as the Exemplary Voluntary Efforts (EVE) Award or the Secretary of Labor’s Opportunity Award. Both programs were instituted in the late 1980s to recognize federal contractors for exemplary efforts in advancing fair employment practices and programs. Both programs were ultimately rescinded in 2013.

Recognizing that awards and recognition programs may incentivize contractor compliance, the OFCCP issued directive 2018-06 titled, “Contractor Recognition Program.”  While short on details, the directive describes several tools and resources under development:

  • A contractor recognition program that highlights implementable best or model contractor practices;
  • A contractor mentoring program that uses contractors to help their peers improve compliance; and
  • Other initiatives that provide opportunities for contractors to collaborate or provide feedback to OFCCP on its compliance assistance efforts.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=732786

OFCCP launches new resource for contractors

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The Office of Federal Contract Compliance Programs (“OFCCP”) has announced that it has launched a new resource for federal government contractors called the “Contracting Officer Corner.”

OFCCP touts the new website as constituting “a central repository of resources, including a new pre-award process guide and downloadable workplace posters, for both federal agency contracting officials and federal contractors.”

The aim of the website is to “assist and ensur[e] that federal contractors meet their equal employment opportunity obligations,” and to “enhance compliance assistance.”

Keep reading this article at: https://www.natlawreview.com/article/ofccp-launches-new-resource-contractors

OFCCP promises clear guidance and consistency, laying out a program of carrots and sticks

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In his first two speeches after taking over as Acting Director of the Office of Federal Contract Compliance Programs (OFCCP), Craig Leen emphasized a commitment to the rule of law, promised to provide contractors with clear guidance and transparent enforcement processes, offered incentives for voluntary compliance, and outlined plans to identify and audit government contractors that are ignoring their obligations.

His speeches came at the beginning and end of a four-day Industry Liaison Group National Conference held in Anaheim, California that was attended by HR compliance professionals and officials from the Department of Labor (DOL), OFCCP, and Equal Employment Opportunity Commission (EEOC). Although the conference included presentations from industry experts, the highlight for many was the opportunity to hear directly from the OFCCP, including its new acting director.

Mr. Leen opened the conference with a keynote address focusing on his goals for the OFCCP, including transparency, certainty, efficiency, and recognition. Mr. Leen highlighted OFCCP’s recent Directive 2018-01, which requires a Predetermination Notice (PDN) in all cases with preliminary individual and systemic discrimination findings. According to Mr. Leen, contractors can expect meaningful, good-faith conciliation.

Additionally, he noted that the OFCCP will no longer engage in fishing expeditions with information requests during a compliance evaluation. Instead, OFCCP compliance officers must have specific reasons for a request and be able to explain the need for the information upon request.

Importantly, in the information request context, Mr. Leen explicitly acknowledged that contractors will be given reasonable time to respond and that the age of “false deadlines” to show authority was over.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=727378

I think my company is a federal contractor and has regulatory obligations, but where can I look to search for that information?

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Doing business with the United States federal government can be very lucrative, but it comes with a price.

That price arrives in the form of reporting obligations, recordkeeping, outreach, and much more.

Failure to comply with all applicable regulatory requirements can also have steep consequences, so it is very important for federal contractors to ensure they are doing all that is required.

Companies are sometimes unaware that they are a covered contractor or subcontractor and, thus, find themselves unprepared for an Office of Federal Contract Compliance Programs (OFCCP) compliance review. In an effort to better prepare for these types of situations, this article is intended to provide some practical information and resources about federal contractor thresholds and where to look for federal contracts.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=598152

A message to employers who aren’t in a current OFCCP audit

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If your company was one of the 375 government contractors or subcontractors who recently received a Scheduling Letter from the Office of Federal Contractor Compliance Programs (OFCCP), you’re probably not reading this post. You’re too busy scrambling to pull together responses to the 22 items in the Scheduling Letter and Itemized Listing and making sure your affirmative action plans are up to date.

But if you didn’t receive a scheduling order … read on.

Now is a perfect time to check up on your company’s compliance with the various requirements imposed on federal contractors and subcontractors, so that you’re ready when you do receive notice of an OFCCP audit. Every contractor knows that it must maintain affirmative action plans for minorities and women and for the disabled and protected veterans and that it must file EEO-1 and VETS-4212 forms once a year. But are you confident that you’re complying with all the other OFCCP obligations on federal contractors? Here is a quick checklist you can use to make sure your company is in compliance.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=586128

What contractors need to know about new sex discrimination rules

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OFCCPOn June 15, the Office of Federal Contract Compliance Programs (OFCCP)  published a final rule detailing the obligations of federal contractors to ensure nondiscrimination on the basis of sex, and to take affirmative action to treat all applicants and employees equally without regard to sex.

OFCCP is an agency within the Labor Department that enforces a number of employment-related laws applicable to federal contractors, including Executive Order 11246, which bars discrimination on the basis of sex and race. OFCCP originally published its Sex Discrimination Guidelines in 1970, but had not previously revised them.  This new rule represents the agency’s interpretation of Executive Order 11246 as it relates to discrimination on the basis of sex, sexual orientation, or gender identity in light of 45 years of legal developments.

The new rule takes effect Aug. 15, 2016.

Keep reading this article at: http://www.govexec.com/excellence/promising-practices/2016/07/what-contractors-need-know-about-new-sex-discrimination-rules/129938

 

DOL issues final rule revising sex discrimination guidelines for federal contractors

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OFCCPOn June 15, the U.S. Department of Labor (DOL) issued a final rule revising the Office of Federal Contract Compliance Programs’ (OFCCP) long-standing sex discrimination regulations.

According to the DOL, the rule “substantially revises the existing sex discrimination guidelines, which have not been substantively updated since 1970, to align them with current law and legal principles and address their application to contemporary workplace practices and issues.”

The final rule is effective August 15, 2016, and applies to employers with federal contracts or subcontracts totaling $10,000 or more over a 12-month period, unless those employers are otherwise exempt. The final rule implements Executive Order 11246, which after amendments issued by President Obama, prohibits sex discrimination, including on the basis of sexual orientation and gender identity.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=501884

Moody AFB contractor sued over equal opportunity reporting

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The U.S. Department of Labor (DOL) has filed a lawsuit to require Convergys Customer Management Group Inc. to submit documents detailing its affirmative action plans for company facilities in Florida, North Carolina, Georgia and Tennessee.

OFCCPFiled with the department’s Office of Administrative Law Judges, the suit requires Convergys to provide the department’s Office of Federal Contract Compliance Programs (OFCCP) with all documents and information requested, cooperate with scheduled compliance reviews and fully comply with the requirements of all laws enforced by the agency.

If the company fails to comply, the department seeks to cancel the company’s current federal contracts and ban Convergys from future federal contracting.

Keep reading this article at: http://www.cincinnati.com/story/money/2015/12/15/convergys-sued-shunning-employment-probe/77371696/

OFCCP offers Jan. 11 webinar to explain new pay transparency rules

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Today (January 11, 2016), the final rule implementing Executive Order 13665 goes into effect. The Executive Order prohibits federal contractors from firing or otherwise disciplining employees or job applicants for discussing their pay or the pay of their co-workers.

OFCCPA blog post outlining the final rule’s requirements can be found here.

The Office of Federal Contract Compliance Programs (OFCCP) is hosting a webinar on January 11, 2016 at 2:00 p.m. EST to “provide an overview of the final rule, address questions received by the agency since the rule’s September publication, and illustrate the practical application of defenses provided in the rule through several hypothetical scenarios.”

You can register to attend the webinar here.

Contractors should add the new non-discrimination language to their manuals and handbooks and either disseminate their updated policies to employees or post them conspicuously in the workplace.  In addition, contractors should post the updated “EEO is the Law Posted,” available here.

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