Changes Happening at Office of Federal Contract Compliance Programs (OFCCP)

All Federal contractors should be aware that OFCCP is making dramatic changes under the leadership of Patricia Shiu. Desk-audit procedures are being changed behind the scenes and while formal documentation on any policy change has yet to be released, here is some of what we are seeing at Biddle Consulting Group (BCG):

• There has been a surge in the number of desk audits being converted into formal on-site reviews. OFCCP has stated that on-site reviews are now “Standard” and provide a more efficient audit process. It is unclear if OFCCP is attempting to make every audit an on-site although that would seem to be unwieldy for both the OFCCP and the contractor. BCG is attempting to get a response from OFCCP national office to determine any changes in policy.

• OFCCP is focused on job postings, specifically postings for veterans and the disabled. OFCCP is often asking for evidence of job postings in addition to the results of those postings. Related to postings, OFCCP is being very aggressive about Action Oriented Programs (AOP’s) and how successful they have been for contractors. OFCCP is even asking for documentation of the AOP’s listed in the narrative.

• Recent requests for extensions on the 30-day delivery of the AAP after a desk audit letter has been received are being rejected at a seemingly higher rate. While some are still being granted, there has been an increase in rejections. In previous years, rejections were virtually unheard of. Also, OFCCP has threatened very low tolerance for plans not submitted on time.

• One of the more difficult areas that OFCCP is focusing on is data reconciliation. OFCCP is comparing plan data at the beginning and at the end of the plan year to see if the transaction counts result in the expected number(s). For example, if there were ten (10) people in a job group at the beginning of the year, and there were no hires and two (2) terminations in the job group, then OFCCP expects there to be eight (8) people in the job group in the new AAP. This form of data management can be very tricky because people move into and out of job groups and plans for many reasons beyond the basic hire, promotion, or termination. For instance, a transferred or merger related employee may not be noted in one of these types of transactions.

• Since the new leadership has taken over at OFCCP, the number of audits closing has seemed to slow to a crawl compared to the brisk pace of audit closures at this time last year. Whether this is a coincidence or not is unknown.

• While OFCCP continues to focus on hires analyses where possible, BCG is seeing more questions about layoffs and terminations. Even small sample sizes are being scrutinized.

• OFCCP is publicizing their high profile hiring case against Bank of America. See here for details: http://www.dol.gov/_sec/newsletter/

• The OFCCP website has changed to http://www.dol.gov/ofccp/index.htm and readers should note that many of the answers under the Frequently Asked Question (FAQ) section have been updated. Including a broad answer regarding the use of a compensation “Trigger” test.