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Carla Irwin Inc. - Insights

Religious Employers and Religious Exemption

Requesting Extensions to Submit AAP(s) and Supporting Data

Contractor Compensation Practices During a Compliance Evaluation

OFCCP Directives: Compensation, Recognition, Verification, Religious Exemptions and Focused Reviews
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Affirmative Action Maze
Recent OFCCP Directives and Guidance...

Clearly the Office of Federal Contract Compliance Programs (OFCCP) didn’t take a summer break, instead they released five new Directives in August.  Let’s celebrate the kick-off of fall with a look into what has been on this administration’s OFCCP to do list.

5 OFCCP New Directives1On August 24th OFCCP released three Directives, let’s start with the most recent and long awaited, Directive 2018-05 Analysis of Contractor Compensation Practices During a Compliance Evaluation which replaces the rescinded Directive 307.  The OFCCP in an effort to be transparent, support contractor self-analysis and improve consistency during compliance evaluations outlined its procedures for reviewing contractor compensation that include:

  • the structure for determining pay analysis groupings (PAGs),
  • statistical methodology and modeling
  • list of control variables. 

2Directive 2018-06 Contractor Recognition Program also released on August 24th states that the OFCCP is developing a recognition program that supports proactive compliance.  The program will include:

  • best/model contractor practices,  
  • contractor to contractor mentoring program, and
  • OFCCP collaboration with the Women’s Bureau, Office of Disability Employment Policy and other DOL office in the development of these programs. 

3The last August 24th directive is Directive 2018-07 Affirmative Action Program Verification Initiative.  In an effort to verify that contractors are complying with AAP obligation on a yearly basis the OFCCP will be developing a program in which contractors will annually certify compliance with AAP requirements.  In addition:

  • non-certification will be added as a criterion in scheduling methodology,
  • compliance check will be added to verify compliance,
  • proffer of the AAP by contractors when requesting extension in response to a scheduling letter
  • development of information technology to collect and facilitate review of AAPs

4The remaining two directives were both released on August 10th.  The first, Directive 2018-03 Executive Order 11246 Religious Exemptions sets out to incorporate recent court decisions and Executive Orders.  “OFCCP staff are instructed to take these legal developments into account in all their relevant activities” It was footnoted that this guidance supersedes all prior guidance on how religious exemptions apply to sexual orientation and gender identity. 

5The second, Directive 2018-04 will implement focused reviews of contractor compliance with EO 11246, Section 503 and the Rehabilitation Act and Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA).  While the initiative details are still being worked out, what we do know is

  • starting in Fiscal Year 2019 a certain portion of the scheduling list will include focused reviews
  • selection for a focused review will be the same neutral selection system used for creating the scheduling list
  • there will be a standard protocol for conducting focused reviews made available to contractors

So the OFCCP not only released Directives in August, kicking off the 2018 ILG National Conference the OFCCP Acting Director spoke about and released a document entitled “What Federal Contractors Can Expect.”  Here are those expectations:

  • Access to Accurate Compliance Assistance Material
  • Timely Responses to Compliance Assistance Questions
  • Opportunities to Provide Meaningful Feedback and Collaborate
  • Professional Conduct by OFCCP’s Compliance Staff
  • Neutral Scheduling of Compliance Evaluations
  • Reasonable Opportunity to Discuss Compliance Evaluation Concerns
  • Timely and Efficient Progress of Compliance Evaluations
  • Confidentiality
What are my takeaways from this whirlwind of activity? 
I want to be hopeful that this commitment to transparency, especially with regard to compensation, becomes reality.  If this commitment to transparency is successful, it will lead to more consistency in the audit/conciliation agreement process.  Contractors want to follow all of the regulations and do what is right, but they also want to know how the OFCCP is going to evaluation them.  More to come and as the new fiscal year begins.
Carla Irwin

Phone:  815.254.0690


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