Archive for the ‘News’ Category

The Office of Federal Contract Compliance Programs (OFCCP) today announced the publication of proposed revisions to existing veterans’ protection regulations.  Copies of the regulations can be found here:  www.regulations.gov

OFCCP’s announcement reads:

OFCCP Publishes Proposed VEVRAA Regulation Revisions to Strengthen Employment Protections for Veterans

Increasing numbers of veterans are returning from duty in Iraq, Afghanistan and other places around the world only to face substantial obstacles in finding employment. Today, in the spirit of ensuring that all Americans have equal access to good jobs and that America’s workplaces are equitable, the Office of Federal Contract Compliance Programs (OFCCP) published a Notice of Proposed Rulemaking (NPRM).  The NPRM recommends revisions that strengthen Federal regulations implementing the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (Section 4212), as amended, commonly referred to as VEVRAA.

OFCCP proposes several changes to the requirement that employers doing business with the Federal government engage in specific types of outreach and recruitment that target veterans.  One proposal requires Federal contractors to evaluate annually the effectiveness of their efforts to ensure that protected veterans have access to employment opportunities.  The NPRM also proposes requiring Federal contractors to establish and maintain quantitative data on the number of protected veterans they learn about through job referrals, the number of protected veterans applying for jobs, and the number of protected veterans they hire.  OFCCP’s proposal also requires contractors to establish annual hiring benchmarks based on availability data and other relevant information.  These benchmarks will enable contractors to measure their success in recruiting, employing, and retaining protected veterans.

Another proposal addresses self-identification.  In light of the difficulty identifying a veteran protected by Section 4212, the NPRM suggests requiring Federal contractors to invite veterans to self-identify both pre-and post-offer of employment.

You can submit comments on OFCCP’s NPRM either electronically at http://www.regulations.gov or by mail.  The identification number (RIN) for this NPRM is 1250-AA00.  If you are mailing or hand delivering comments, send them to Debra Carr, Director, Division of Policy, Planning, and Program Development, Office of Federal Contract Compliance Programs, Room C-3325, 200 Constitution Avenue, N.W., Washington D.C. 20210.  Indicate RIN number 1250-AA00.

In keeping with their promise of “full-scale, aggressive enforcement” efforts, the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has implemented a new Active Case Enforcement (ACE) directive that strengthens their compliance evaluation process.  The most significant change is that every 25th audit now will include an on-site review, even in the absence of indicators of non-compliance or discrimination.  Additionally, every compliance review will undergo a full desk audit.  This directive is effective for all compliance evaluations started on or after 1/1/2011.

Federal contractors should be prepared for longer, more in-depth desk audits focusing on all aspects of compliance.  Outreach efforts towards veterans and individuals with disabilities, job postings requirements, compensation discrimination and the accessibility of online application systems are areas of increasing importance for OFCCP.  The directive also specifies that at the beginning of a compliance review, the OFCCP will contact the Equal Employment Opportunity Commission (EEOC) as well as state and local fair employment agencies to “determine the nature, status and outcome of any complaints that have been filed against the contractor at the establishment under review.”

OFCCP is in the process of expanding its focus “to include findings of non-compliance with the laws administered by the Department of Labor’s Veterans’ Employment & Training Services (VETS), Occupational Safety and Health Administration (OSHA) and Wage and Hour Division (WHD).”  ACE also calls for each compliance officer “to review the contractor’s compliance history for the past three years” using the OFCCP’s internal database to see if there are any patterns of non-compliance.

All on-site audits under ACE will include a review of the contractor’s compliance with Executive Order 13496.  Federal contractors and subcontractors should review their contracts and subcontracts to ascertain whether they fall under those regulations.

The new ACE procedures replace the formerly used Active Case Management (ACM) system which governed compliance reviews from 2003 – 2010.  ACM limited OFCCP’s focus to cases of systemic discrimination involving 10 or more affected employees.  It only called for full desk audits every 25th review and on-site visits every 50th.  The ACE directive states that “ACM proved to be of limited utility in that it did not allow OFCCP to effectively use all of its investigative tools.”

Amid all of these changes to the compliance review process, a few things remain unchanged.  The Federal Contractor Scheduling System (FCSS) will still be used to select which establishments will be reviewed and the order of the audits.  At the end of the compliance review, contractors will still have the same 24 month exception period in which that establishment will not be audited again.

The ACE directive can be viewed on OFCCP’s website:  http://www.dol.gov/ofccp/regs/compliance/directives/dir295.htm Frequently asked questions are available at:  http://www.dol.gov/ofccp/regs/compliance/faqs/ACE_faqs.htm

OFCCP recently published their budget request for FY 2012 which outlines their goals for the coming year as well as the funding they want to reach those goals.  The proposed budget of $109,010,000 represents a $3.6 million increase over the requested budget for FY 2011.  It also provides for the hiring of an additional 13 full-time employees.

OFCCP has made it clear that eliminating compensation discrimination will be a major priority in FY 2010.  With the proposed rescission of their former compensation guidelines and a new compensation data collection tool in the works, this should come as no surprise to the Federal contracting community.

What is notable is that OFCCP is planning to increase the scope of their compensation focus.  $3.5 million and 11 employees will be allocated towards their new initiative to identify workers misclassified as independent contractors.  This is part of a larger initiative within the Department of Labor that will cost $46 million.  Citing this as an issue in several compliance evaluations, OFCCP states that “Federal contractors who are seeking to skirt the requirements of E.O. 11246 may misclassify their employees as [independent] contractors in order to make the composition of their workforce appear more diverse or to mask discriminatory employment practices.”  OFCCP will develop their investigation process for this misclassification issue during FY 2012 and use the fourth quarter to “establish a baseline measurement of the impact of this initiative.”

The budget request also gives some hints on what the new compensation collection data tool may look like:

“OFCCP plans to develop and implement a web-based compensation data collection tool that would enable the agency to identify indicators of pay disparity among federal contractors.”

Additional details indicate that the tool would collect compensation data from 70,000-110,000 contractors and would likely array the data by job group.  OFCCP is also envisioning more technological improvements at the agency including a “secure compliant web portal” where AAP data would be collected from Federal contractors.

Fiscal Year 2010 OFCCP Enforcement Results

In FY 2010, OFCCP completed 4,960 compliance evaluations; up from 4,000 in FY 2009 and representing the most compliance evaluations since FY 2004.  A 32% increase in the number of audits ending in conciliation agreements brought the total to 919 compared to 694 in FY 2009.  The amount of financial recoveries rose from around $9M to $9.75M, even though the number of workers recompensed dropped from 21,839 in FY 2009 to 12,397 in FY 2010.

The estimated number of compliance evaluations for FY 2011 is lower at 3,500, but is targeted to increase to 3,675 in FY 2012.  OFCCP says that this decrease is “critical to implementing the fundamental changes to OFCCP’s new, comprehensive and multi-faceted enforcement strategy.”  Read: fewer, more in-depth compliance evaluations with more on-site visits. The recently released Active Case Enforcement directive will govern this strategy.

Functional AAPs are Coming Back

A recent webchat regarding the 2012 budget revealed that a revamped functional AAP unit is in the works.  OFCCP Director Patricia Shiu indicated that a new directive is forthcoming that will outline a new process for contractors to request approval for functional AAPs and by which they will be evaluated for compliance.

To view the budget request visit:  http://www.dol.gov/dol/budget/2012/PDF/CBJ-2012-V2-04.pdf