OFCCP 2018 Activity, Part II (Beware Pack of Wild Dogs)

Acting Director Leen and his staff are off the chain, roaming the countryside devouring multi-year audits and anything else that threatens the efficiency of the agency.  Recently they returned to the Frances Perkins building with the chewed-off ear of a grizzly bear, just to show you they could do it, with a tag on it inscribed “Directive 2019-02.”  This Directive is as bold as it is revolutionary. 

First and foremost, it does everything it can to incentivize contractors to engage in open and early conciliation of discrimination violations, which not only reduces the tension in the room, but guarantees a large increase in transactions / touches by the agency, which in itself will have some remarkable consequences.  First, it will by necessity, require agency field personnel to maintain a high level of expertise and efficiency to keep pace.  Second, the more information processed the more refined the patterns and results become.  Third, the volume of transactions and increase in contractors touched by the agency will result in more findings (types and numbers) of violations and likely recoveries will increase, but more importantly more contractors will be better informed / warned and no doubt whatsoever, if treated respectfully by the agency, more confident and willing to engage in self-analysis and corrective action. Fourth, all of the above will increase the confidence and morale of agency personnel both by resolving more violations and by spending as much or more time on resolving, as finding, violations. 

Another aspect of the Directive which is revolutionary, is the idea of leveraging contractor personnel to self-audit similar violations in other contractor establishments.  Based on the JBS Consent Decree model (entered into November 14, 2018), to take advantage of expedited conciliation, a contractor must agree to self-audit some / all of its additional establishments for the same violations which are found in an audited establishment, report the findings to the agency, and then report periodically to the agency on further analyses and remedial measures taken as a result.1 Requiring and trusting a contractor with a violation to be, to some extent, its own investigator and implement its own remedial measures sends a strong message of trust in contractors’ desire to do the right thing, and in the spirit of “doing more with less,” by reaching more conciliation agreements, the agency essentially expands their workforce at no cost with contractor personnel who, with input from District Directors, take corrective action and report on their progress.

Finally, the Directive’s adoption of the “minimum/preferred” rather than “basic” qualification standard for inclusion in the pool of applicants entitled to relief appears to be a concession, and contractors would argue a realistic one by the agency, that will promote more conciliation agreements and more goodwill between the agency and contractors.

Those groundbreaking aspects to DIR 2019-02, once implemented, could have a profound and lasting impact on the interactions between the agency and contractors, the agency’s sense of confidence in itself, and the agency’s results in fulfilling its mission.  What a bold and ingenious step taken by the agency.  Ten years from now, they could be teaching DIR 2019-02 at West Point as the text book example of how to attack an entrenched administrative position.  Either way, they’ll have new data points on the effectiveness of OFCCP enforcement policies. 

Most importantly, the agency’s transparency, accountability and outreach mirrors what it asks of contractors in their dealings with applicants / employees.  The pack of wild dogs is leading by example, and good things will come of it.

1JBS was apparently proactive in its efforts to come into compliance, and volunteered the application of consent decree jurisdiction to all of its establishments; so, some credit is due to JBS and credit is due the agency for seeing its potential and offering it up to all audited contractors, particularly with the speed in which they acted.  While all of those establishments covered by the conciliation agreement will receive a five-year exemption from further audits (absent an employee complaint investigation), a contractor will be required to report on those covered establishments, its “analysis, findings, any corrective actions, and will provide OFCCP with all supporting documents and information reasonably related to such a review” for the life of the agreement (DIR 2019-02, Section 7, Material Violations: Discrimination, 4.c.).  In the JBS Consent Decree, initial findings and corrective actions recommended by a mutually agreed upon consultant will be shared with the agency, but the results of subsequent semi-annual adverse impact analyses need not be, it only requires JBS to report any corrective actions taken during that five-year period (JBS Consent Decree, Section V, Paragraphs 47, 48).  OFCCP FOIA page (listing consent decrees).