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Practitioner's Eye: Part 2: Get Ready for OFCCP's New Forms of Audit Review!

By: Paul McGovern

Practitioner's Eye: Part 2: Get Ready for OFCCP's New Forms of Audit Review!

This is the second article in a series on OFCCP’s proposed audit practice changes. See here for our article on OFCCP’s intended updates to the standard “Supply and Service” scheduling letter. This article reviews OFCCP’s proposals for “Focused Reviews” and “Compliance Checks.” We encourage you to participate in the public comment period concerning these changes before it closes on June 7th.

Focused Reviews – All Brand New

The OFCCP announced its intention to perform “Focused Reviews” in Directive 2018-04, released in August 2018. “Focused” reviews will be limited to only one of your programs, your E.O. 11246 race/gender, Section 503, or VEVRAA plan. OFCCP has not yet released a Scheduling Letter for E.O. 11246 plans. The OFCCP says that the reviews will function as a forum for best practices. They still want a lot of data.

The OFCCP is kicking off the Focused Reviews with Section 503. It included 500 of these reviews in the recent CSAL. Apparently to help the OFCCP get the disability-Focused Reviews going, OMB reviewed and approved a Section 503 Focused Review Scheduling Letter last fall. Like the standard Scheduling Letter, it expires on June 30, 2019, but will remain in force until a new Section 503 Focused Review Scheduling Letter is approved.

All Focused Reviews will be onsite. This year’s Section 503 reviews will be at corporate headquarters. To give you a bit of a breather, however, while OFCCP will start sending Scheduling Letters on May 9, it will hold off on actual onsite visits until on or after September 1. Cold comfort, perhaps, given how much work it takes to prepare for any onsite.

Both Section 503 and VEVRAA Focused Review detail must be submitted electronically within 30 days of receipt of the Scheduling Letter.

The Section 503 and VEVRAA Focused Reviews ask for the same types of data, including:

  • Review of outreach effectiveness
  • Employee-specific self-ID information
  • Compensation detail
  • Hire, promotion and termination detail
  • Copies of your Section 503 and E.O. 11246 plans
  • Assessment of physical and mental job qualifications
  • Your collective bargaining agreement (CBA)

The government estimates it will take 10.5 hours to collect and prepare this information for submission for a Section 503 or VEVRAA Focused Review. Do you agree? Do you agree that the Agency should include complex plan and compensation detail in what it advertises as a quick and painless review?

What’s New with “Compliance Checks”?

Compliance Checks have not been used for more than ten years, so they feel new. In the past, contractors would provide “progress to goals” reports, “examples of accommodation” and outreach detail. The reviews were onsite, but the OFCCP commonly spent much more time traveling to the facility under review than the 20-30 minutes it took to complete the Compliance Check.

The OFCCP promises that the reviews remain be a cursory records check. Onsites are optional.

The OFCCP now wants you to submit all three “written AAPs” and to identify which accommodations were granted or denied. The outreach requirement remains the same as before – at least as written (“Examples of job advertisements, including listings with state employment services”). But given Director Leen’s insistence on the importance of outreach, I would do a thorough self-analysis. For example, be ready to tell the Agency what additional outreach to community-based organizations you have done on your own (information you should be logging, preferably in your vendor’s outreach tool). Better to be ready.

If you maintain construction plans, you will have to provide personnel activity and payroll data. Construction contractors must also provide the transactions analyses from their veterans and disability plans unless you work exclusively on federally-assisted programs.

The Comment Period Ends Soon!

No way will you be able to get ready for a compliance review in the 2 hours that the OMB estimates it will take to prepare for the standard (non-construction) Compliance Check.

Should all Compliance Checks be onsite? What can OFCCP really do with the transaction data it wants for Focused Reviews?

Log a comment, anonymously if you prefer, to let the Agency know what you think, positive, negative or in between. Contractor comments have led to changes in the past. Also, the OFCCP has asked for “transparency” in its relationship with the contractor community – so let the Agency know what you think.

If you maintain a “Supply and Service” program, comment here by June 11.

Construction contractors should review the Compliance Check proposals and comment by June 7.

Read other articles in this series

In this article we welcome Paul McGovern, a compliance practitioner with a practiced eye. Paul is the founder of Praxis Compliance, an HR consulting firm focusing on Affirmative Action program implementation and audit response, D&I program analysis and remediation, and EEO/ER charge investigation and resolution. Former program lead for Verizon Communications Affirmative Action and EEO/ER investigations initiatives, responsible for the design and implementation of compliant HR processes company-wide, Paul led groups successfully responding to 180+ OFCCP audits and 2,000+ employee relations matters and agency-filed discrimination and harassment complaints. Paul is Chair of the National Industrial Liaison Group (NILG), a consortium of nation-wide Affirmative Action practice groups partnering with federal contractors and regulatory agencies to ensure equal opportunity.

Note: This article is meant to assist in a general understanding of the current law and practice relating to OFCCP. It is not to be regarded as legal advice. Companies or individuals with particular questions should seek advice of counsel.

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