Hunton Employment & Labor Perspectives

Federal contractors have been closely following leadership changes at the Office of Federal Contract Compliance Programs (OFCCP).   Most notably, President Trump appointed Ondray T. Harris as OFCCP Director, and Craig Leen as Senior Advisor to the OFCCP.   Both men have backgrounds in management-side private law practice.  This has contractors hopeful they may bring fresh eyes and a more pragmatic approach to the OFCCP.

Though time will tell, the contractor community is already seeing positive changes.  Most recently, Ondray Harris issued Directive 2018-01 — his first as OFCCP Director— requiring the use of Predetermination Notices (PDNs) before the Agency issues a Notice of Violation (NOV).   PDNs give the contractor notice of the OFCCP’s alleged findings, and an opportunity to respond and rebut the Agency’s claims, which is a welcome change from the “surprise” NOVs contractors received under the Obama-era OFCCP.  PDNs are now required for both individual and systemic cases.

More shifts in OFCCP process and priorities may be coming.  Mr. Harris and Mr. Leen recently addressed federal contractors in an intimate, candid, Q&A session, at the spring compliance conference of the Institute for Workplace Equality in San Francisco.  This author was privileged to be a presenting Faculty Member at that Conference and spoke with both men.

Mr. Harris’ remarks focused on four primary themes:

(1)  The OFCCP aims to close audits in a more timely fashion.   Mr. Harris noted the OFCCP has many audits that are more than 1,000 days old (and conference participants cited even longer-running audits, up to six years).  He agreed audits should not take this long, even with systemic findings.  The OFCCP is currently reviewing all old cases.  Going forward, its goal will be to close audits in under a year, particularly if there is no finding of discrimination.

(2)  The OFCCP is creating two recognition awards.  Mr. Harris and Mr. Leen described ways to incentivize contractors to embrace affirmative action goals and activities.  The Agency is planning two recognition awards for this purpose (the OFCCP used to have recognition programs, but they have not been used in recent years).  One program would recognize efforts towards veteran and disabled individuals, and another, nondiscrimination in pay practices.  Contractors would be evaluated based on the “maturity and comprehensiveness” of their affirmative action programs.

(3)  This new OFCCP will be more transparent and collaborative.  Mr. Harris and Mr. Leen spoke about returning to a synergetic relationship with contractors.  After all, the Agency and contractors have a common goal: equal employment opportunity (EEO) workplaces.  Mr. Harris indicated the OFCCP should partner with employers in these effort. This is a welcome change from the OFCCP’s aggressive pursuits in recent years, where audits often felt more like a “gotcha” game than a neutral investigation. The OFCCP aims for a more transparent, more effective, less time-consuming enforcement approach.  Mr. Harris and Mr. Leen also are exploring a possible pilot program, where contractors would be a given a period of several years to identify and fix problems, and would be insulated from audit until the end of that period.

(4)  The OFCCP encourages Apprenticeship Programs.  Mr. Harris spoke at length about the crucial role apprenticeship programs play in the workplace and America at large.   He noted that approximately six million jobs are currently unfilled in the U.S., which impairs productivity and impacts the nation’s infrastructure.  And yet, about seven million people are seeking jobs.  The OFCCP wants jobseekers to have the skills they need for gainful employment.  Apprenticeship programs, Mr. Harris said, are a way to make that happen.  Mr. Harris noted that apprenticeship programs can close the ever-widening “middle skills gap” (jobs that require some training and skill).  Mr. Harris also noted the role that immigration can play in closing the middle skills gap, and reflected on our country’s strong immigrant roots.  “Immigration is good, and immigrants are good for our country.”  The OFCCP is considering non-financial incentives for companies that create apprenticeship programs. These might include things like safe harbors or an exemption period from audits.

Mr. Harris’ and Mr. Leen’s participation at the conference was greatly appreciated by all attendees and presenters.  Both men were applauded for their candor, their pragmatism, and their commitment to effecting change at the OFCCP.  And, this was only one of many meetings Mr. Harris and Mr. Leen have held directly with federal contractors, as part of an effort to understand the employer’s perspective and improve audit efficacy.   Stay tuned as we all continue to follow the evolving OFCCP under the leadership of Ondray Harris.