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Report from the ABA/ Labor and Employment Meeting: Dir. Leen’s Plans for OFCCP Focused Reviews

OFCCP Director Craig Leen presented at the American Bar Association’s Annual Meeting of the Labor and Employment Section in New Orleans on November 8. Leen’s comments centered on 503 and VEVRAA focused reviews. That same day, OFCCP issued a second 2019 Corporate Scheduling Announcement Lists that included 500 VEVRAA focused reviews. Here are the key takeaways from Leen’s presentation:

  • 503 and VEVRAA focused reviews will include an analysis of “systemic” discrimination in promotions, terminations, and compensation. Leen stated that the agency will conduct regression analyses in order to ferret out such discrimination. Because most establishments do not employ a sufficient number of Individuals with Disabilities (IWDs) or protected veterans to conduct a statistical analysis, in all likelihood, an analysis of compensation or promotion practices will likely be based on individual comparators and anecdotal evidence. Leen also reported that all focused reviews, VEVRAA and 503, will include an on-site. He estimated the on-sites would last three to five days.
  • OFCCP plans to post on its website a list of the contractors who successfully completed a 503 or VEVRAA focused review without any adverse findings, as well as best practices identified in each review.
  • Leen urged attendees to review the list of 503 best practices posted on the agency’s website and considering implementing some or all of them. The 503 focused reviews will include an assessment of whether the contractor implemented any of the best practices. Leen also noted that OFCCP will be taking a hard look at the impact of assessments, particularly those using artificial intelligence, on IWDs and the basis for denying a requested accommodation. Leen asserted that virtually all requests should be granted since most accommodations cost less than $500. Finally, Leen wants to see an Accessibility Coordinator in every workplace.
  • Compliance officers conducting 503 focused reviews will ask for, at least, the following documentation:
    • Termination records
    • Personnel files
    • Flexible workplace polices
    • Response rate for self-identification surveys
    • Contractor’s efforts to increase self- id response rates
    • Job descriptions

Although Leen specifically referenced this list in connection with Section 503 focused reviews, this list could also apply to a VEVRAA review.

  • A revised version of the 503 self-identification form is pending approval with the Office of Management and Budget (OMB). The intent of the revisions is to make the form more welcoming to IWDs in an effort to increase response rates.
  • Leen’s comments focused primarily of compliance with Section 503. However, he did stress a new focus with respect to VEVRAA compliance – discrimination against military spouses. The VEVRAA regulations include a prohibition against associational discrimination similar to the Section 503 and the ADA. 41 CFR 60-300.21(e)

Leen also stated that contractors may implement hiring preferences for IWDs and Veterans. According to Leen, such programs are not discriminatory. This position appears to be contrary to the EEOC’s guidance on voluntary preferences. Before implementing such a hiring preference, please consult with counsel.

  • Finally, Leen announced that next year, OFCCP will launch additional types of focused reviews on disability accommodations and religious accommodations. Eventually, Leen also plans to implement compensation and promotion focused reviews.

For more information on preparing for or responding to a focused review, please contact your FortneyScott attorney or send us an e-mail with your questions.

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.