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Affirmative Action Update: 5 Things You Need to Know

While HR and Compliance staffs have been pulled in entirely new directions over the last few months, the staff at the Office of Federal Contract Compliance Programs (OFCCP) has been moving full speed ahead.

1. Are you a Federal Contractor or Subcontractor? If you do not know the answer, you really need to find out soon. Since 2018 the OFCCP has been working on a Verification Initiative (2018-17) to ensure that all covered federal contractors and subcontractors are preparing their annual affirmative action program (AAP). Even with advanced notice, 85% of the establishments who are scheduled for a compliance review are not able to submit their annual AAP on time. So, the OFCCP has been exploring a variety of options to target companies who receive federal contracts or subcontracts but do not check the box on their EEO-1 reports that they are federal contractors. OFCCP Director Leen has been nominated for an Inspector General position, so he is hoping to implement a new verification process before he leaves. If you are not clear about your status, skip the government websites and get a customer list from your sales department. The OFCCP is intent on ensuring there are no “free rides”. Jurisdiction Thresholds Infographic
      
2. Covid-19 Update: Since March 17th, 2020, the OFCCP has started 70 new audits in the Midwest Region. If you made that list or you are on the corporate scheduling announcement letter (CSAL) for an upcoming audit, the OFCCP is certainly granting extensions, and even conducting virtual on-sites. Covid-19 Update In addition, Carmen Navarro, Regional Director for OFCCP’s Midwest Region, notified the St. Louis Industry Liaison Group (ILG) that the OFCCP will be expecting to see your policies related to Covid-19. That will include how decisions were made to determine who was laid-off or furloughed, who was recalled, and how accommodations were made for people with disabilities. Be sure you can track and document that data as part of your AAP.
     
3. Updated Form for Self-Identification of People with Disabilities: Since March 24, 2014, federal contractors have been mandated to use Form CC305 when inquiring about an applicant’s or employee’s disability status. That form requires approval by the Office of Management and Budget (OMB). The original form expired at the end of January 2020. The revised form was announced on May 8th and must be implemented by August 4, 2020. Revisions include changes to the wording on the list of disabilities, reducing the format to one page, and adding a nifty section at the bottom that employers can modify for their internal use. New Self I.D. Form
     
4. Compliance Checks are Back and Focused Reviews are Moving Forward: For those of us who are old enough to remember, the OFCCP used to conduct sort of a quick check of many AAPs but did not conduct a full audit unless they saw some red flags. We’ve been missing those days. Well, a modified version of Compliance Checks is back! So that may be a case of “be careful what you wish for”; we’ll see. And the new twists are focused reviews of your AAP for Protected Veterans (VEVRAA), or your AAP for Individuals with Disabilities (503). Those audits have now begun. For 503 reviews, the OFCCP will be looking for corporate-wide initiatives including outreach and a centralized point of contact for applicants and employees who make requests for accommodations to ensure consistency. For VEVRAA, in addition to your outreach for Veterans, they will be looking for your policy in support of military spouses.
     
5. Early Resolution Conciliation Agreements (ERCA): In 2018, the OFCCP implemented new procedures designed to shorten the audit resolution process, particularly to address cases that were more than three to five years old which was 22.8% of their case load. ERCAs were pushed as a win-win: the contractor agrees to voluntarily evaluate its personnel practices at its other establishments, or a portion of them; and the OFCCP agrees not to schedule new compliance evaluations for five years. The results just came in. On Monday, June 29th, 2020, the OFCCP announced they have entered into 18 ERCAs which secured $31 million in back pay, and $5 million in salary adjustment over the next five years. These agreements covered 312,000 employees at 850 establishment. They expect to have a total of 30 ERCAs by the end of September securing more than $50 million in back pay.

Bottom line, amid the many other tasks at hand, be sure to keep your affirmative action programs up to date. The OFCCP is looking to have another record year of settlements.