OFCCP Issues Three New Directives

Today, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) made a significant announcement affecting federal contractors.  First, under a new directive, DIR 2019-01, OFCCP rescinded Active Case Enforcement for compliance reviews.  Second, DIR 2019-02 outlines new Early Resolution Procedures which will offer a five-year break from agency audits in exchange for reporting certain employment data to resolve audits.  Finally, OFCCP officially stated that it will be issuing opinion letters that offer compliance guidance.

The new DIR 2019-02, Early Resolution Procedures (ERP), offers five years of respite from audits to contractors who are settling bias claims with the OFCCP, in exchange for contractors reporting hiring, pay, and other employment data to the agency.  The ERP provides the mechanism by which OFCCP staff may resolve violations and work with the contractor to develop corporate-wide corrective actions.

  • For nonmaterial violations found, which can be corrected immediately during an audit, the OFCCP can resolve the evaluation during the desk audit with compliance assistance resulting in the issuing of a closure letter referencing the nonmaterial violations and their remedies.
  • For material violations not involving discrimination and for material violations involving discrimination found during an audit OFCCP will agree to a five-year moratorium on audits at that establishment if the contractor agrees to an Early Resolution Conciliation Agreement with Corporate-Wide Corrective Action (ERCA). The ERCA requires the contractor to review all or a negotiated subset of its establishments for violations similar to those found in the initial audit and to implement of any corrective action including job offers. The ERCA also requires the contractor to submit progress reports on the results of its analysis, findings, corrective actions and all supporting documents reasonably related to the review for up to five years.

OFCCP also issued DIR 2019-03 in which it announced that it will begin issuing opinion letters, similar to the Labor Department’s Wage & Hour Division, offering guidance on how contractors can comply with their affirmative action and nondiscrimination obligations based on specific factual scenarios.  It also outlined plans to enhance its current Help Desk capabilities.  The Directive also states that OFCCP may consider whether a contractor’s actions are consistent with an opinion letter, FAQ, or help desk advice when considering whether to cite the contractor for a violation.

Finally, the agency issued Directive 2019-01, rescinding Active Case Enforcement (ACE), DIR 2011-01.  According to Directive 2019-01, the agency’s recent directives on Transparency in OFCCP Compliance Activities, DIR 2018-09; Affirmative Action Program Verification Initiative, DIR 2018-07; and Focused Reviews, DIR 2018-04 have embedded the most effective parts of ACE and ACM into its standard operating policies and procedures, so the ACE directive is no longer necessary.

BOTTOM LINE: While the new directives provide welcome new ways to resolve issues with the OFCCP, the question will be whether the “new” OFCCP will be any more reasonable in resolving those issues than the “old” OFCCP.  How these directives will be implemented remains to be seen.  The attorneys at FortneyScott will monitor implementation of the new directives and keep you informed of on ongoing developments. If you have any questions, contact your FortneyScott attorney.


FortneyScott Lunch & Learn: 2018 Midterm Elections Update

The votes are in! After a fiercely contested midterm election, Democrats have gained control of the U.S. House of Representatives, and Republicans have retained the Senate. What will this mean for employers and government contractors?

Join experienced Washington, DC-based attorneys David Fortney, Susan Warshaw Ebner, and Nita Beecher on Tuesday, November 13th at 12:00 pm  for a special post-election webinar as they weigh in on how the midterm results affect the legal landscape for labor and employment and government contracting, including:

  • How federal agencies will be affected by the election results, including whether there will be more Congressional oversight of federal agencies’ rulemaking and enforcement activities;
  • What is the impact of the election results on current Federal programs and contracts;
  • Who likely will be the leaders for the key Congressional committees, and what will be their agendas;
  • What is the impact of the elections on the confirmation proceedings for many long-pending key agency nominations; and
  • Whether any key legislation is likely under the new 116th Congress or the final lame duck session of the 115th Congress?

Don’t miss this timely discussion! Click here to register.


FortneyScott Presenting at the 45th Labor and Employment Law Institute

David Fortney will be presenting at the 2018 Labor & Employment Law Institute in Minnesota on November 15, 2018.  He will present on significant new developments out of the DOL – in particular, from the Wage and Hour Division and the Office of Federal Contract Compliance Programs (OFCCP). Join this session to learn practice tips for dealing with those divisions in matters involving your clients. 


For more information about the Labor & Employment Law Institute, please click here.


EEOC Public Meeting on “Revamping Workplace Culture to Prevent Harassment”

The EEOC held an important public meeting on “Revamping Workplace Culture to Prevent Harassment” on October 31, and Sara Nasseri, an attorney from FortneyScott, attended.  Continue reading to find out recommendations and best practices for employers in the current environment in which there is growing awareness and complaints about harassment and discrimination in the #MeToo environment.

The meeting focused on the EEOC’s efforts in addressing sexual harassment in the workplace. The meeting was an open discussion between EEOC’s leaders and various witnesses and experts in the field on steps that employers, and the community as a whole, should take in the wake of the growing momentum of the #MeToo movement. The areas that were discussed and that offer the key points for employers’ compliance efforts include:

  • changing company culture,
  • ensuring strong leadership and accountability, and
  • implementing effective policies, procedures, and training.

The EEOC’s Substantial Efforts:   Acting EEOC Chair Victoria Lipnic reviewed EEOC’s efforts to date. For decades, the EEOC has investigated and litigated all types of harassment in all types of workplaces. When the #MeToo movement began about a year ago, EEOC was already leading efforts. Indeed, the agency’s focused efforts began about three years ago with the creation of the Select Task Force on the Study of Harassment in the Workplace which comprised of 16 members from around the country from a range of industries. After 18 months of extensive study, a detailed report was issued by the EEOC Co-Chairs, which echoed the same themes of company culture, leadership and accountability, and policies, procedures, and training that were voiced during the public meeting. The task force reconvened this past June. The Acting Chair and Commissioners stressed the role the EEOC has been trying to take as an enforcer, educator, and leader.

The Panelists Presentations:  Seven panelists, ranging from a management labor and employment attorney to a rape and sexual assault survivor and activist, presented their testimonies on their perspectives on the issue and their recommendations for the EEOC. All panelists were questioned on various aspects of their testimonies and each was given an opportunity to really engage with the agency from both a personal and a professional perspective.

The key takeaways from the panelists include:

  • The EEOC is hoping to be a leader in this movement and their efforts have not gone unnoticed – it is reported that charges filed with the EEOC alleging sexual harassment the past FY 2018 increased by 13.6% from FY 2017.
  • Focus on company culture and for employers to shape their cultures in such a way as to stop harassment before it even starts.
  • Account for harassment on all bases and not just focus on sexual harassment in light of the growing #MeToo movement.
  • Understand that there is no “one size fits all” approach to policies, procedures, and training and tailoring different approaches to different types of workplaces. There are different vehicles by which to conduct training, which includes a wide range from harassment prevention and response to civility training.
  • Emphasize transparency so that communication lines are open and the workforce can trust that measures will be taken.

Next Steps for Employers:   Company culture was underscored and it was strongly recommended that employers “own” their culture down to the individual workplace level. Employers training and response efforts must be broad enough and targeted enough not only regarding harassment on the basis of sex but on all bases of unlawful discrimination, and across all industries.  Well-counseled employers are going well beyond the traditional, narrowly focused sexual harassment training.

If you have questions or need assistance on how your company can navigate the complexities and ever-evolving nature of the #MeToo movement, related training, or if you need more information about EEOC’s stepped up enforcement efforts, please contact Sara Nasseri or your FortneyScott attorney.

ABA 12th Annual Section of Labor and Employment Law Conference – Wage and Hour Update: What Has Really Changed Two Years into the Trump Presidency?

David S. Fortney, Esq. is presenting on Friday, November 9th at the ABA 12th Annual Labor and Employment Conference in San Francisco, CA from 8:00 AM – 9:15 AM.

You must register for this event. Click here for more information.

FortneyScott Joins Forces to Support Supreme Court Review of Rizo Prior Pay Decision

In the wake of the Ninth Circuit’s decision in Rizo v. Yovino, FortneyScott, on behalf of the Society for Human Resource Management (“SHRM”), partnered with the U.S. Chamber of Commerce to file a brief for amici curiae in support of the employer’s petition for writ of certiorari on October 4. At issue before the Supreme Court is whether prior salary is a “factor other than sex” as defined by the Equal Pay Act (“EPA”).

The Ninth Circuit decision unanimously held that “any other factor other than sex” is limited to legitimate, job-related factors such as a prospective employee’s experience, educational background, ability, or prior job performance. As such, the Ninth Circuit held that allowing an employer to justify a wage differential between men and women on the basis of prior salary is wholly inconsistent with the provisions of the EPA. However, the Court left open the possibility that prior salary could potentially play a role in individualized salary negotiations.

In light of the Ninth Circuit decision, Yovino filed a petition for writ of certiorari on August 30. As a result, a number of key employer-side groups, including SHRM, expressed support for U.S. Supreme Court review in order to clarify the significant and important question of whether employers can rely on prior salary history in setting workers’ wages. The support for Supreme Court review is also strengthened by the fact that there is a deep circuit split on the ability and legality of employer’s reliance on prior salary and a Supreme Court decision would result in a uniform policy across the nation for all employers.

We expect the U.S. Supreme Court to issue a decision on the petition for writ of certiorari by the end of this year. In the meantime, if you have any questions or assistance on how to navigate the complexities surrounding pay practices, or if you are interested in learning more about the status of the case generally, contact your FortneyScott counsel.

Breaking OFCCP News

Directive (DIR) 2018-08 addresses transparency by the OFCCP in all stages of compliance activities to help contractors comply with their obligations and understand their expectations during a compliance evaluation. The Directive instructs OFCCP staff, from the regional level to the national office, to take measures to be as transparent as possible during each stage of the evaluations, beginning with the scheduling and ending with the conciliation efforts.  For a copy of this Directive, click here.

Directive (DIR) 2018-09 reveals a plan to implement an Ombud Service in the OFCCP’s national office to facilitate the “fair and equitable resolution” of specific types of concerns raised by external stakeholders, which would include federal contractors and subcontractors and law firms. This plan stems from feedback received by the various stakeholders during the past year and is an effort by the OFCCP to increase transparency and improve communication. For a copy of this Directive, click here.

OFCCP Issues CSALs & New Extension Requirements

On September 7, 2018, OFCCP announced that it mailed 750 new Corporate Scheduling Announcement Letters (“CSALs”) to federal contractors as a supplement to the Fiscal Year 2018 Scheduling List released on March 19, 2018.  The agency stated that the CSALs are a “45-day” courtesy notice prior to sending the OMB-approved scheduling letters. Once the scheduling letters are received, contractors will have 30 days in which to submit their Affirmative Action Plans (AAPs) and the other items required by the scheduling letter and itemized listing. Therefore, according to OFCCP, “all contractors on the current list are receiving a minimum of 75 days advance notice to have their AAPs ready.”

In a change outlined in an FAQ entitled “Requesting Extensions to Submit AAP(s) and Supporting Data,”

OFCCP reinforced that contractors are obligated to submit their EO 11246, VEVRAA and Section 503 AAPs and supporting data within 30 days of the receipt of the Scheduling Letter and Itemized Listing.  In order to facilitate a timely submission, the assigned compliance officer will contact the contractor within 15 days of the contractor’s receipt of the Scheduling Letter to offer technical assistance and explain allowable extensions for the AAPs and supporting data.

With respect to allowable extensions, OFCCP will grant a one-time 30-day extension for supporting data related to the EO 11246, VEVRAA and Section 503 AAPs, provided the contractor:

  1. Requests the extension prior to the initial 30-day due date for the AAPs; and
  2. Timely submits the basic EO 11246, Section 503 and VEVRAA AAPs within the 30-day period after receiving the Scheduling Letter and Itemized Listing.

The FAQ makes clear that OFCCP will generally not allow extensions for the submission of EO 11246, Section 503 and VEVRAA AAPs, or allow extensions for supporting data if requested after the submission date for the AAPs has passed although it reserves discretion to grant such extensions in extraordinary circumstances.  Failure to submit AAPs and/or supporting data timely, with approved extensions, will result in an immediate Show Cause Notice.

In a separate release, the OFCCP provided an updated version of its Methodology for Developing the Supplement to the FY 2018 Supply & Service Scheduling List.

Please contact your FortneyScott attorney or send an email to info@fortneyscott.com for more information on this new extension policy or for assistance in preparing AAPs and responses to Scheduling Letters.

Bid Protests: A Way To Raise Your Procurement Concerns

September 30th is the end of the Federal government’s fiscal year.  Federal agencies spend significant portions of their annually appropriated funds entering into new contracts and exercising options on existing ones during the last quarter of its fiscal year.  Government contracting rules require that Federal agencies conduct these procurements in accordance with the stated terms of the specific solicitation.  The terms of the solicitation must be based on the procuring agency’s true needs and must not contain requirements that would unfairly restrict competition.  The agency’s designated contract and evaluation officials must act in a fair and objective manner, free from any impermissible conflict of interest, when making determinations during the procurement process.  Their evaluations and the ultimate award decision must be in accordance with the procurement’s stated evaluation and award criteria.

Because the Federal government wants to ensure that its procurements are fairly and properly conducted, it affords actual or potential offerors the opportunity to protest specific matters relating to the agency’s procurement.  For example, if you are a potential offeror who believes the terms of a solicitation are defective or unduly restrictive, you may have grounds to file a preaward bid protest to challenge the terms of the solicitation.  If you are an actual bidder or offeror who believes that you have not been fairly evaluated and considered for award in accordance with the terms of the solicitation, or that the decision to award the contract to another offeror was defective, then you may have grounds to file a post award bid protest.

If you are eliminated from the competitive range or not awarded the contract, you also may have the right to request a required debriefing to obtain more information prior to protesting.

Small businesses also have protest rights to challenge small business set-aside procurement size standards or the size or eligibility of an actual or proposed small business awardee under a small business set-aside procurement.

Bid protests can only be filed by interested parties, in specified forums, and within specified times in the procurement process.  Depending on the circumstances and timing of the protest, you may be able to obtain a stay of the procurement pending the disposition of the protest.

Key takeaways:

  • There are a number of rules governing debriefings, pre and post award bid protests, and size protests.  Consult counsel if you have questions regarding your rights, potential protestable issues, options, and timing requirements.
  • If you were eliminated from the competitive range or did not receive an award, you may be able to request a required debriefing to obtain information that may address your concerns, or provide more concrete information upon which to raise a protest.  At a minimum, learning what you did right or wrong can help you be a better competitor the next time.
  • If you have concerns, you need to raise them in a timely fashion in the right place to avoid losing the opportunity to exercise your rights.  Deadlines for seeking a required debriefing, filing a procurement integrity concern, filing a bid or size protest, are short.
  • On the flip side, if you are awarded a contract and there is a protest, you may want to retain counsel to defend your interests in the protest.

The rules governing procurements, debriefings and protests are myriad.  If you have concerns about a particular procurement, find out your rights and options.  Well-articulated concerns, timely raised with the appropriate official and forum, can help ensure your challenge is appropriately considered. FortneyScott will be hosting a bid protest lunch and learn webinar in September.   If you have questions about how to raise your concerns in a procurement, debriefing or protest, or are interested in learning more about this upcoming webinar, contact Susan Warshaw Ebner or your FortneyScott counsel.

OFCCP Issues New Compensation, Recognition and Certification Directives

On August 24, 2018, OFCCP issued three new Directives, the most important of which rescinded the Obama Administration’s Directive 307, “Procedures for Reviewing Contractor Compensation Systems and Practices.”  The agency also issued Directives creating a program to certify that contractors have prepared an Affirmative Action Plan (AAP) and are in compliance with federal affirmative action program requirements, and an initiative establishing a recognition program for contractors with high-quality and high-performing compliance programs and initiatives.

According to the agency, these Directives are part of the Department’s efforts to maximize the effectiveness of compliance assistance outreach.

  • Clear Guidance for Contractor Compensation Practices:  The new Compensation Directive, Directive 2018-05, rescinds Directive 307 (which had been renamed as 2013-03). Principally, the agency’s compensation analysis will now “mirror a contractor’s compensation system” when the contractor provides sufficient information.  The Directive provides transparency to contractors on OFCCP’s approach to conducting compensation evaluations by further outlining the agency’s practices and approaches to similarly-situated employees, creating pay analysis groups, conducting statistical analysis and modeling, and other analytical matters relevant to conducting sound, compensation compliance evaluations and contractors’ self-audits. The Directive also emphasizes that where OFCCP “believes there are indicators of disparate impact in compensation, it will work collaboratively with the contractor to understand any defense that a policy or practice that caused the disparate impact is job-related and consistent with business necessity, and will fully consider supporting evidence the contractor provides.”  The Directive takes effect for “all reviews scheduled on or after August 24, 2018 and they apply to open reviews to the extent they do not conflict with OFCCP guidance or procedures existing prior to the effective date.”  Directive 2018-05 specifically outlines when information provided to OFCCP will be released as there have been some unauthorized releases of information about ongoing audits.  Specifically, Paragraph 8 states “OFCCP does not release data obtained during the course of a compliance evaluation until the investigation and all subsequent proceedings, if any, are complete.”
  • Affirmative Action Program Verification Initiative: Directive 2018-07 implements a verification process with the objective of ensuring that all covered federal contractors are meeting the most basic equal employment opportunity (EEO) regulatory requirement, namely, the preparation of a written AAP and annual updates to that program.
  • Contractor Recognition ProgramsDirective 2018-06 is re-establishing its contractor recognition program that will now include awards that highlight 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.

The team at FortneyScott is reviewing these Directives in detail and determining what impact these new policies will have on federal contractor compliance and, more importantly, what next steps contractors should take to ensure compliance with the three new directives. Please contact your FortneyScott attorney or send an email to info@fortneyscott.com for more information.