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OFCCP Issues Two New Directives Addressing Religious Freedom Protections and Announcing New Focused Reviews

On August 10, 2018, OFCCP’s Acting Director Craig Leen issued two new policy directives aimed at protecting Americans’ religious freedom and announcing new focused reviews. The directives call for protecting the rights of religion-exercising organizations and individuals and more comprehensive reviews of contractor compliance, respectively.

Directive (DIR) 2018-03 instructs OFCCP staff to take into account recent U.S. Supreme Court decisions and White House Executive Orders that protect religious freedom and afford broad anti-discrimination protections to religion-exercising organizations and individuals under the United States Constitution and federal law. The Directive incorporates recent developments in the law regarding religion-exercising organizations and individuals. OFCCP staff are instructed to take these legal developments addressing religious freedoms into account in all their relevant activities, including when providing compliance assistance, processing complaints, and enforcing the requirements of E.O. 11246. For a copy of this Directive, please click here.

Directive (DIR) 2018-04 provides that the OFCCP will conduct focused reviews of contractor compliance with (1) Executive Order 11246, (2) Section 503 of the Rehabilitation Act of 1973 (Section 503), and (3) the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA). To ensure compliance, OFCCP will conduct the focused reviews by going onsite and performing a comprehensive review of the particular authority at issue. For example, if it is a Section 503 focused review, the compliance officer would review policies and practices of the contractor solely related to Section 503 compliance. The review would include interviews with employees affected by the policies, as well as those responsible for equal employment opportunity and compliance. OFCCP would also look to evaluate hiring and compensation data. This type of review would be used in each of the three types of focused reviews to ensure compliance with anti-discrimination obligations and equal employment opportunity. For a copy of this Directive, please click here.

The OFCCP’s News Release can be found here. 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 two new directives. Please contact your FortneyScott attorney or send an email to info@fortneyscott.com for more information.

OFCCP Director Ondray Harris Leaves – What to Expect from OFCCP Next?

As July was coming to an end, the U.S. Department of Labor announced that Ondray Harris would leave his role as OFCCP Director, effective July 27.  Thereafter, Deputy Director, Craig Leen, was appointed the Acting Director of OFCCP.  The news came a week before federal contractors and OFCCP representatives gathered in Anaheim, California at the 2018 Industry Liaison Group National Conference. Acting Director Leen took center stage and was the lead spokesperson for the agency at the National ILG Conference.

Acting Director Leen opened the Conference by outlining the agency’s four areas of focus: Transparency, Certainty, Efficiency, and Recognition.  He provided some detail with respect to these general areas.  Leen also discussed his commitment to affirmative action generally.  However, as a strong advocate for individuals with disabilities, he announced that in 2019, the agency will begin conducting focused reviews of contractors’ compliance with Section 503’s affirmative action requirements.  Leen also discussed the contractor’s “Bill of Rights,” which OFCCP issued on August 1.  The Bill of Rights constitutes a significant change in the agency’s stance toward contractors, giving substance to prior promises of greater transparency and consistency and signals an end to the OFCCP’s adversarial approach to compliance evaluations.  Additionally, Leen confirmed that pay equity remains a focus of the agency, announced that OFCCP is in the process of implementing an annual AAP certification, and is considering re-instituting a contractor award program.  Finally, Leen committed to moving compliance reviews more quickly.

Stay tuned for more FortneyScott updates, specifically with regard to official confirmation of a new OFCCP Director, and any further updates on the direction the agency will take moving forward.