Tuesday, July 12, 2011

OFCCP Director Hosts Web Chat on Regulatory and Compliance Issues

On July 12, 2011, OFCCP Director Patricia A. Shiu conducted a web chat that addresses many important issues of concern to federal contractors. The following is brief synopsis of her comments on the issues. To view the entire transcript of the "chat" go to the OFCCP website at: http://www.dol.gov/regulations/chat-ofccp-static-201107.htm.

Notice of Proposed Rulemaking for VEVRAA Regulations:

The comment period for Notice of Proposed Rulemaking on Section 4212 of the Vietnam Era Veterans’ Readjustment Assistance Act closed yesterday and the agency has begun the process of reviewing and analyzing all of the comments. This process may take several weeks to complete, and will include consideration of suggestions for revision to the NPRM. In the Final Rule the agency will describe the comments, the issues they raised, and our responses to them. OFCCP anticipates publishing a Final Rule in the spring of 2012.

Approximately 80 comments were received regarding the proposed rule. In answer to the question whether OFCCP will withdraw the proposed rule in accordance to a demand by various employer organizations, the director said that she would not.

Census Bureau Data for 2010:

OFCCP is working with census bureau, EEOC and Department of Justice in creating the special tab. It should be available in the next 12 months. Contractors should continue to use the 2000 census data until the 2010 data are available. The Census Bureau indicates that it expects to release the 2010 data in December 2012.

Compensation Data Collection Tool:

The Compensation Data Collection Tool ANPRM is in the final stages of review and the agency expects to publish it within the next few weeks.

Regional Vacancies:

OFCCP is currently recruiting for Regional Director in the Midwest Region and Deputy Regional Directors in the Northeast, mid-Atlantic, Midwest and Dallas regions.

Proposed Rescission of Compensation Guidelines:

In response to the proposed rescission people have made the agency aware of the need to develop new guidance. OFCCP is reviewing those comments.

Documenting Good Faith Efforts:
The director stated that there are a variety of ways to document good faith efforts. For example, copies of job postings, correspondence, and documentation of community outreach with public workforce agencies or training and educational organizations. The most important thing is to ensure that you have complete and accurate documentation (e.g. emails, letters of confirmation, job postings, etc.). OFCCP regulations and technical guides have more detailed information: http://www.dol.gov/ofccp/

Section 503 ANPRM:
The Section 503 NPRM is currently under review. Once the review is complete, OFCCP will publish the NPRM for public comment. OFCCP anticipates publication of the Section 503 NPRM in the Federal Register sometime in the next month. The NPRMs for construction and sex discrimination are anticipated for publication on the dates listed in the spring regulatory agenda.

FAAP Agreements:
Contractors are not required to develop a FAAP (Functional AAP) agreement. The regulations specify that contractors who have employees who work at an establishment with fewer than 50 employees have the following options for covering these employees: 1. In an AAP covering just that establishment 2. In an AAP which covers the personnel functions or 3. In the AAP of the managing official to whom they report. The new FAAP directive is available on the OFCCP website. Notification letters were sent to existing FAAP holders to inform them to contact the agency about renewal of the FAAP.

The Revised Scheduling Letter:
The revised scheduling letter was published for comment in May, and the comment period closed July 11th. There were a few comments received. OFCCP is reviewing those comments and will make a determination regarding the letter and the itemized listing in the very near future. There are no new regulatory changes that will be reflected in the current revision.

The Federal Contract Compliance Manual:
The FCCM will be published sometime this fall.

The ACM vs. the ACE:
There are several major differences between Active Case Enforcement (ACE) and Active Case Management (ACM). Under ACE, OFCCP is using all of the compliance evaluation investigative methodologies specified in the regulations (i.e., compliance review, offsite review of records, compliance check and focused review), whereas under ACM, only the compliance review method was used. Under ACM, a full desk audit was only conducted where there were indicators of discrimination or in every 50th review. ACE procedures require a full desk audit in every compliance evaluation. Additionally ACM procedures focused on identifying cases where there were 10 or more affected class members, whereas ACE does not have a minimum affected class member threshold.

Outreach Efforts:
In the first half of the current fiscal year, OFCCP conducted nearly 1,000 outreach events, reaching almost 26,000 stakeholders, including workers, community-based organizations, civil rights groups, employers, human resources professionals, attorneys, consultants, labor unions, veterans’ service organizations and more. OFCCP will continue to participate in these activities. Notices of meetings and events can be found on the agency's website http://www.dol.gov/ofccp.

Inter-Agency Communications:
OFCCP and EEOC, as well as the Department of Justice, have increased communications at all levels. For example, the agencies are conducting joint trainings; coordinating civil rights policies on an ongoing basis; developing pilot programs among the field offices; and sharing best practices. The purpose of this collaboration is to develop a unified civil rights agenda which is part of President Obama’s vision for our agencies.

Does OFCCP always send a notice to the contractor to advise that the audit has been closed? Yes

One trend that OFCCP has observed is that when it identifies major violations, contractors have failed to implement internal, self-audit procedures and failed to implement corrective actions. This has resulted in the agency finding record keeping violations relating to personnel activity and compensation.

Will the proposed scheduling letter update follow OIRA protocol (http://www.reginfo.gov/public/jsp/Utilities/faq.jsp), which includes a second public comment period of 30 days before final approval? If so, will OFCCP seek an emergency extension for the current scheduling letter, which expires 9/30/2011?

Yes, OFCCP is following the OIRA protocol and will provide an opportunity for a second round of comments on the proposed updates to the scheduling letter.

Databases Used for Contractor Selection:
OFCCP uses several databases to determine whether an employer is a federal contractor. Examples include Central Contractor Registration (CCR), Federal Procurement Data System-New Generation (FPDS-NG), EEO-1 Surveys, and Dun & Bradstreet. CCR captures registration information of all federal contractors. FPDS-NG captures all transactions of federal contracts. OFCCP receives EEO-1 reports from the U.S. Equal Employment Opportunity Commission for all businesses that self-report as federal contractors. Finally, Dun & Bradstreet captures name, address, family tree, and DUNS numbers for all facilities and subsidiaries of a business.

Worker Misclassification:
Worker misclassification is an important issue for the OFCCP because Federal contractors must include all their workers in their compliance plans and not mask some by classifying them as independent contractors. As part of the Secretary’s department-wide “Plan Prevent and Protect” initiative, OFCCP is working with other DOL agencies on this misclassification issue.

In the first six months of Fiscal Year 2011, OFCCP has completed 44 financial conciliation agreements that include $5.66 million and 657 job offers for 8,090 victims. This compares favorably to the same period last year when the agency had completed 35 financial CAs totaling $2.77 million and 582 job-offers for 3,157 victims. This represents a 25 percent increase in CAs, more than double the financial remedies and, most importantly, an increase in job opportunities for workers who faced discrimination.

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