Six OFCCP Predictions for 2019

Dec 20, 2018

The second year at the OFCCP under the Trump Administration has been marked by activity – two Directors and nine Directives (which have limited enforceability according to the Department of Justice) – but little to show for it: $10 million less in recoveries than FY2017, and fewer audits than in any recent fiscal year. As 2019 begins, however, the agency has begun to make some of the changes federal contractors have been hoping to see since the end of the Obama Administration.

Based on what has happened in 2018, the OFCCP Practice Group attorneys at FortneyScott offer the following six OFCCP predictions for 2019:

  1. An increased number of audits in calendar year 2019. In OFCCP Acting Director Craig Leen’s November 2, 2018 testimony before the Commission on Civil Rights, Leen said that he plans to increase the number of audits in FY2019 to 3,500. In FY2018, OFCCP only completed 800 audits. It is questionable whether that number will be reached, but there is clearly intent to do more audits.
  2. New and different types of audits. One way more audits will be undertaken is to change how audits are conducted. In addition to the full audits, the agency will perform “no-certify” audits and compliance checks based on the SAM database ; pre-award audits; complaint investigations; and construction audits, all designed to be more quickly resolved. At least 500 of the audits scheduled will be focused reviews under one of the three laws enforced by OFCCP—Executive Order 11246, Section 503 or VEVRAA.
  3. Audits will be conducted more efficiently and effectively. OFCCP’s new Directive on compliance audit procedure, DIR 2019-01 , rescinded Active Case Enforcement and outlines a more streamlined audit process. The commitment to greater transparency under new Directive, DIR 2018-08 , will aid federal contractors in better understanding and managing their compliance audits.
  4. Compensation will continue to be the BIG issue for OFCCP. Although Acting Director Leen rescinded Directive 307 with Directive 2018-05 , the new compensation Directive kept many of the worst features of Directive 307, including pooled regressions, OFCCP-created pay analysis groups (PAGs), and analyzing multiple years of compensation data together. An increased percentage of OFCCP’s FY2018 settlements were based on compensation and contractors, and we will see that trend continue in 2019.
  5. New Early Resolution Procedures. Although some aspects of the new Early Resolution Procedures ( DIR 2019-02 ) are very helpful to contractors, contractors need to consider the ramifications very carefully before agreeing to the new OFCCP’s Early Resolution Conciliation Agreement with Corporate-Wide Corrective Action (ERCA), especially for material violations alleging discrimination. The proposal to close audits with non-material violations with just a closure letter is a welcome return to earlier approaches. However, the material violation discrimination resolution procedures will subject all of a federal contractor’s establishments to OFCCP reporting, and may not provide the best resolution terms for the federal contractor. As a result, we predict that few contractors will elect to seek these agreements.
  6. New Opinion Letters and Help Desk. OFCCP’s new Directive on opinion letters and an enhanced help desk ( DIR 2019-03 ) is an attempt to provide contractors with more useful compliance assistance. While OFCCP seems to be mirroring DOL’s Wage & Hour Opinion Letters, it is unclear whether the contractors will be able to rely on those letters as they can W&H’s opinion letters. As a result, it remains to be seen whether contractors will avail themselves of this opportunity.

We wish you the best for 2019, and we are happy to answer any questions that you may have about OFCCP compliance matters.

David S. Fortney

Jacqueline R. Scott

H. Juanita Beecher

Elizabeth B. Bradley

Burton J. Fishman

Sean D. Lee

Sara Nasseri

Consuela A. Pinto

Mickey Silberman

Leslie E. Silverman

OFCCP Contractor Portal
26 Mar, 2024
OFCCP announced on March 25, 2025 that its contractor portal will open for federal contractor certification on April 1, 2024 and close on July 1, 2024.
14 Mar, 2024
Join our skilled presenters as they discuss the actions of the DOL (Wage & Hour; OFCCP; OSHA), the NLRB, and recent Court arguments confronting the Chevron doctrine, with a focus on the impact on the workplace.
31 Jan, 2024
On January 30, 2024, the Biden Administration published a proposed regulation to prohibit federal contractors and subcontractors from using job applicant’s prior salary history when setting pay and to require federal contractors to disclose the expected salary range in job postings.
On January 9, 2024, the Department of Labor’s Wage and Hour Administration (“W&H”) issued its long-a
17 Jan, 2024
On January 9, 2024, the Department of Labor’s Wage and Hour Administration (“W&H”) issued its long-awaited final regulation, “Employee or Independent Contractor Classification Under the Fair Labor Standards Act.”
17 Nov, 2023
FortneyScott is pleased to announce that its co-founder Jacqueline Scott became President of the global bar organization, Union Internationale des Avocats (UIA). As President of the UIA, Jacqueline Scott has responsibility for overseeing and leading the UIA’s attorney members in 110 countries. UIA fosters professional development and the exchange of information and ideas internationally, promotes the rule of law, defends the independence and freedom of lawyers worldwide, and emphasizes friendship, collegiality and networking among members. Additional information on Ms. Scott and her new UIA responsibilities is available here .
15 Nov, 2023
For the first time as President of the Union Internationale des Avocats ("UIA"), FortneyScott co-founder Jacqueline Scott attended the 67th UIA Congress in Italy late last month. The UIA is a global, multicultural organization that brings together the legal profession and whose members represent 110 countries. Ms. Scott provided her first Presidential Speech for the closing of the Congress, "Defense of the Defense" . You can view the video or read the transcript is also available.
Show More
OFCCP Contractor Portal
26 Mar, 2024
OFCCP announced on March 25, 2025 that its contractor portal will open for federal contractor certification on April 1, 2024 and close on July 1, 2024.
14 Mar, 2024
Join our skilled presenters as they discuss the actions of the DOL (Wage & Hour; OFCCP; OSHA), the NLRB, and recent Court arguments confronting the Chevron doctrine, with a focus on the impact on the workplace.
31 Jan, 2024
On January 30, 2024, the Biden Administration published a proposed regulation to prohibit federal contractors and subcontractors from using job applicant’s prior salary history when setting pay and to require federal contractors to disclose the expected salary range in job postings.
On January 9, 2024, the Department of Labor’s Wage and Hour Administration (“W&H”) issued its long-a
17 Jan, 2024
On January 9, 2024, the Department of Labor’s Wage and Hour Administration (“W&H”) issued its long-awaited final regulation, “Employee or Independent Contractor Classification Under the Fair Labor Standards Act.”
17 Nov, 2023
FortneyScott is pleased to announce that its co-founder Jacqueline Scott became President of the global bar organization, Union Internationale des Avocats (UIA). As President of the UIA, Jacqueline Scott has responsibility for overseeing and leading the UIA’s attorney members in 110 countries. UIA fosters professional development and the exchange of information and ideas internationally, promotes the rule of law, defends the independence and freedom of lawyers worldwide, and emphasizes friendship, collegiality and networking among members. Additional information on Ms. Scott and her new UIA responsibilities is available here .
15 Nov, 2023
For the first time as President of the Union Internationale des Avocats ("UIA"), FortneyScott co-founder Jacqueline Scott attended the 67th UIA Congress in Italy late last month. The UIA is a global, multicultural organization that brings together the legal profession and whose members represent 110 countries. Ms. Scott provided her first Presidential Speech for the closing of the Congress, "Defense of the Defense" . You can view the video or read the transcript is also available.
15 Nov, 2023
FortneyScott and DCI Consulting Group Launch DEI Risk Assessment DEI program evaluation offers privileged critical information to mitigate risk Washington, D.C.: Fortney & Scott, LLC (FortneyScott), a leading Washington, DC law firm representing and advising a broad range of employers, has partnered with DCI Consulting Group, Inc. (DCI), a Washington, D.C.-based human resources data analytics and consulting firm, to offer a comprehensive, multi-disciplined DEI Risk Assessment. Employers and their C-Suites and Boards of Directors are facing growing challenges to their Diversity, Equity, and Inclusion (DEI) programs. In response, employers are turning to Fortney Scott and DCI as outside experts to assess their legal compliance and provide advice as to best practices. As a result, we have developed a proactive, comprehensive, and attorney-client privileged DEI Risk Assessment. This DEI Risk Assessment is a crucial first step to identifying and mitigating potential legal exposure, and includes: 1. Self-Evaluation of DEI Programs & Commitments 2. Listening Sessions with Executives & DEI Leaders 3. Legal Review & Risk Assessment of Policies, Procedures and Practices 4. Scorecard & Best Practice Recommendations “Following the recent rulings by the Supreme Court in UNC and Harvard, it is clear that the legal risks for corporate DEI programs have substantially increased.” said FortneyScott Co-Founder David S. Fortney. “The critical step for employers now is to conduct an attorney-privileged assessment of their DEI programs -- that includes necessary workforce analyses and benchmarking based on best practices -- to determine how their DEI programs should be implemented going forward.” About FortneyScott FortneyScott is a Washington, DC-based law firm counseling and advising clients on the full spectrum of DEI and workplace-related matters. The firm offers clients unparalleled experience and expertise by its attorneys, who formerly held senior positions at the U.S. Department of Labor (DOL), Equal Employment Opportunity Commission (EEOC) and other government agencies, in corporate and Congressional legal staffs, in major law firms, and who served as a judge on an international tribunal. About DCI DCI Consulting Group is a human resources risk management consulting firm strategically headquartered in Washington, D.C. Members of DCI’s staff are recognized experts in a variety of spaces, including systemic compensation discrimination analyses, affirmative action plan development and implementation, pay equity analyses, DEIA metrics, employee selection and test validation, and OFCCP audit and litigation support. DCI also offers proprietary software and related support to clients. FortneyScott Media Contact: DCI Media Contact: info@fortneyscott.com news@dciconsult.com 202-689-1200 14-448-7355
30 Oct, 2023
On Monday, October 30th, President Biden signed a wide-ranging executive order directing numerous federal agencies to take targeted actions regarding Artificial Intelligence ("AI"). The executive order, entitled Executive Order on Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence (the "EO"), focuses in part on the use of AI in the workplace, though it covers other areas of concern such as cybersecurity and housing discrimination. As is summarized in the Fact Sheet issued by the White House, the EO directs the Department of Labor ("DOL") to "[d]evelop principles and best practices to mitigate the harms and maximize the benefits of AI for workers by addressing job displacement; labor standards; workplace equity, health, and safety; and data collection." Some of the other specific actions called for in the EO relating to the workplace include: Requiring the DOL to issue guidance to federal contractors on how to prevent AI and other technologies from causing hiring discrimination. Directing the Department of Justice and Federal civil rights offices to combat algorithmic discrimination through training, technical assistance, and coordination on best practices for prosecuting civil rights violations caused by AI. Directing DOL to issue a report outlining how the federal government can help workers displaced by AI and other technological advancements. This includes examining current laws and "identify[ing] options, including potential legislative measures, to strengthen or develop additional Federal support for workers displaced by AI[.]" This EO represents significant action on the part of the Biden Administration to respond to public calls for action on AI but it is not an enforceable regulation. Employers should monitor the actions taken by federal agencies in response to the White House’s call to action and the growing focus in the U.S. Senate on AI legislation from Senator Chuck Schumer (D-NY) and others. FortneyScott will continue to monitor these developments and provide updates as appropriate.
26 Oct, 2023
NLRB Issues Joint Employer Regulation The NLRB issued its long-awaited and controversial Rule on joint employment. The aim of the Rule is to deem vastly increased numbers of workers as joint employees, which would permit the workers to seek to bargain with both joint employers. Under the new Rule, NLRB will give determinative weight to the alleged joint employer’s authority to control seven key factors relating to the terms and conditions of employment: (1) wages, benefits, and other compensation; (2) hours of work and scheduling; (3) the assignment of duties to be performed; (4) the supervision of the performance of duties; (5) work rules and directions governing the manner, means, and methods of the performance of duties and the grounds for discipline; (6) the tenure of employment, including hiring and discharge; and (7) working conditions related to the safety and health of employees.” The most controversial element of the new regulation is that indirect and unexercised authority or control can establish joint employment. Thus, if a company has contractual authority over employment terms but never used that power, that could be enough evidence under this Rule to establish the existence of a joint employer relationship. The effective date of the new rule is December 26, 2023, and the new standard will only be applied to cases filed after the effective date. Update on Biden Administration Nominees The Biden Administration has struggled to get its nominees confirmed by the Senate. However, in last few months, the logjam seems to be breaking. Jessica Looman Confirmed as Wage & Hour Administrator On Wednesday, October 25, 2023, the Senate by a 51-46 vote confirmed Principal Deputy Administrator, Jessica Looman, as the head of the DOL’s Wage and Hour Division. Ending an unusually long vacancy for the post after President Biden’s initial nominee, David Weil, was defeated. Looman served as the Principal Agency Administrator since January 20, 2021. As W&H Administrator, Looman will be asked to shepherd her agency’s new Independent Contractor and Overtime regulations to final promulgation. EEOC Chair Charlotte Burrows Clears Hurdle to Confirmation Also on Wednesday, October 25th, the Senate Health, Education, Labor and Pensions Committee moved Burrows’ nomination as Chair of the EEOC closer to confirmation, in an 11-10 party-line vote. Chair Burrows, whom President Joe Biden nominated in June for another term, is expected to win Senate approval but not by the unanimous approval she received in 2019. With Chair Burrows’ confirmation, President Biden will have appointed a majority of the 5-member Commission, enabling the EEOC to undertake its long-delayed plans including renewal of its pay data collection. Karla Gilbride Sworn in as EEOC Counsel Karla Gilbride was sworn in as EEOC’s General Counsel after being confirmed by the Senate on October 17 for a four-year term. Gilbride is well-versed in employment discrimination litigation with over 15 years of experience in arguing cases on behalf of workers. She previously worked as the co-director for the Access to Justice Project for the non-profit organization, Public Justice. Gilbride, who is blind, is the first person with a known disability to be appointed to this role as General Counsel to the EEOC.
18 Aug, 2023
It is critical for employers to understand the legal implications of the Supreme Court’s affirmative action decisions on their DEIA programs. Join FortneyScott attorneys as they discuss the impact of the Supreme Court’s Harvard/UNC decisions on employers’ DEIA and supplier diversity programs. The attorneys also will provide attendees with practical recommendations on addressing legal compliance in companies DEIA programs.
More Posts
Share by: