OFCCP 2018 Activity
Transparency, Accountability and Responsiveness (and expecting the same in return)
“We have to go to those countries and we have to ask them to make contributions that are greater than the contributions they're making right now. You know, we're going to protect them, we're going to remain loyal to them, but at the same time it's a two-way street. They have to help us also.”
Donald Trump October, 2016
The Trump administration’s OFCCP began actively soliciting contractor feedback in 2017, and made it clear that their enforcement style would be to provide as much clarity and accountability as possible. Their “doing more with less” motto helps explain the process they are following to educate and engage contractors. Their tone of conciliation and co-operation is welcomed by contractors, but it’s clear the agency expects as much as ever, that contractors be actively engaged, and that the agency’s efforts to clarify guidance and to educate contractors will promote more or better self-evaluation and correction of problems.
In 2018 the OFCCP began publishing Directives and guidance as a result of both the contractor feedback and the priorities of Director Harris and (now) Acting Director Leen. Two process changes that demonstrate a co-operative posture are the OFCCP beginning to use a pre-determination notice letter (PDN) in every case before a notice of violation (NOV) is issued, along with the centralization of PDN approval (DIR 2018-01); and, greater deference to a contractor’s pay analysis groups (PAGs) of similarly situated employees for pay discrimination analysis (DIR 2018-05, rescinding DIR 2013-03 [also referred to as Directive 307]). The deference allowed in DIR 2018-05 is conditioned on the contractor providing the OFCCP its “compensation hierarchy and job structure” in its initial response to the OFCCP. While neither Directive’s process change guarantees a deference to substantive measures of discrimination, in both instances, it at least suggests the possibility by the OFCCP inviting dialogue before taking action which might be adverse to the contractor.
Additionally, the OFCCP published its methodology for selecting contractor establishments for review, which includes among other things, that they will not review “Direct Establishments” (establishments fulfilling a contract) with less than 70 employees and “Associate Establishments” (establishments not fulfilling a contract) with less than 100 employees. That does not change the requirement to develop and implement an AAP for establishments with 50+ employees, it just notifies contractors that for now, those establishments will not come under scrutiny unless part of investigating an individual complaint. In contrast, DIR 2018-07 announced that the OFCCP intends to explore a process for requiring a “certification” or representation by a contractor that an AAP is in use for each establishment subject to the AAP requirements, resulting in an increased likelihood of review for those contractors / establishments not certifying compliance with AAP use. [Currently annual representations in SAM include representations related to previous contracts and current use of an AAP under EO 11246 (as well as current reporting compliance for Forms EEO-1 and VETS-4212), though those representations do not cover all contractors subject to AAP requirements (commercial items contracts and subcontractors not registered in SAM).]
Office of Federal Contract Compliance Programs Directives.