Government Contractor Compliance & Regulatory Update

OFCCP Issues Directive Announcing “Affirmative Action Program Verification Initiative”

Quick Hit: OFCCP has issued a new Directive (Directive 2018-07), announcing its intention to develop an Affirmative Action Program Verification Initiative (the “Verification Initiative”). The Directive only notifies the contractor community that the program is in the works – for now, nothing has changed. However, the Directive shares that the program will, among other things, include “a process whereby contractors would certify on a yearly basis compliance with [Affirmative Action Program (“AAP”)] requirements,” and tweak OFCCP’s compliance evaluation scheduling criterion to attempt to increase the likelihood non-compliant contractors are scheduled for compliance evaluations.

Key Takeaways:

  1. If you are a contractor that has not been diligent in preparing its annual AAP, in the near future you will have strong incentives to change your ways. If you are one of those contractors, now is the time to get your AAP house in order.
  2. The Verification Initiative makes some practical sense and from the Directive it appears OFCCP has given the matter serious thought. That being said, the devil, as always, will be in the details. This program has the potential to be a positive development for compliant contractors, or another compliance headache.

Stay tuned. We will report on the details of the program once it is announced.

More Detail: As we previously reported, Acting OFCCP Director Craig Leen announced at the National Industry Liason Group Conference that the OFCCP is working on a contractor certification program. Although he was short on details, he shared that the program would aim to provide OFCCP with a way to identify contractors who are likely in compliance in order to focus compliance evaluations on contractors likely not in compliance.

In Directive 2018-07, OFCCP has formalized this initiative. As explained by OFCCP, the Verification Initiative appears to have two primary goals: (1) increase contractor compliance with OFCCP regulatory requirements; and (2) help OFCCP focus its compliance evaluations on non-compliant contractors.

The Directive notes that OFCCP can only conduct compliance evaluations for a small portion of the 120,000 contractor establishments governed by its regulations. The Verification Initiative is a way for OFCCP “to expand its compliance reach.” The Directive also expresses OFCCP’s “concern[] that many federal contractors are not fulfilling their legal duty to develop and maintain AAPs and update them on an annual basis.” The Directive cites to a 2016 U.S. Government Accountability Office report which found that “close to 85 percent of contractor establishments did not submit a written AAP within 30 days of receiving a scheduling letter.” Noting that the agency only audits a small fraction of government contractors, the Directive states that “federal contractor establishments have a small likelihood of discovery if they decide not to develop and update an AAP.” This, according to OFCCP, creates a “free rider” problem, where some contractors “benefit from participating in the federal procurement process while not bearing the corresponding costs of AAP compliance based on the current high likelihood they will not be listed (and potentially receiving an inequitable advantage over law abiding contractors).”

As such, the Directive announces that OFCCP seeks to “establish[] a program for verification of compliance by all contractors with AAP obligations.” The program would encourage compliance in two ways. First, contractors would have incentive to prepare their AAPs because they would have to certify compliance. Second, certifying compliance would lessen the chances that contractor would be selected for a compliance evaluation. As the Directive explains, the failure to develop and update an AAP violates threshold contractual and legal obligations, and indicates a lack of commitment to comply with equal employment opportunity and anti-discrimination obligations. Accordingly, in situations where contractor establishments fail to comply with the AAP requirement, the likelihood of other violations, including discrimination, may be higher. Thus, OFCCP believes that [adding certification information as a] new [compliance evaluation scheduling] criterion could be effective at identifying potential violators of the authorities OFCCP enforces.

The Directive only announces the creation of a verification program at some point in the future. As such, we still do not know what the program will entail or even when OFCCP aims to implement it. However, the Directive states that the program “would initially take the form of OFCCP review of a certification, followed by potential compliance checks, and could later take the form of annual submission of AAPs to OFCCP for review.” The Directive states that “comprehensive program” will include:

  1. Development of a process whereby contractors would certify on a yearly basis compliance with AAP requirements.
  2. Inclusion of a criterion in the neutral scheduling methodology increasing the likelihood of compliance reviews for contractors that have not certified compliance with the AAP requirements.
  3. Compliance checks to verify contractor compliance with AAP requirements.
  4. Requesting proffer of the AAP by contractors when requesting extensions of time to provide support data in response to a scheduling letter.
  5. Development of information technology to collect and facilitate review of AAPs provided by federal contractors.

The Directive anticipates that the new program will not come as a surprise to contractors. It promises that “OFCCP will prepare a public outreach and education campaign on this initiative. The campaign would encourage contractors to contact the agency for compliance assistance regarding AAPs.”

OFCCP Launches New Resource For Contractors

The Office of Federal Contract Compliance Programs (“OFCCP”) has announced that it has launched a new resource for federal government contractors called the “Contracting Officer Corner.” OFCCP touts the new website as constituting “a central repository of resources, including a new pre-award process guide and downloadable workplace posters, for both federal agency contracting officials and federal contractors.” The aim of the website is to “assist and ensur[e] that federal contractors meet their equal employment opportunity obligations,” and to “enhance compliance assistance.”

The new website includes:

  • a “Pre-Award Process Guide” providing guidance on the process for requesting Equal Employment Opportunity clearance from OFCCP;
  • information about subcontractor notifications required to be provided to OFCCP by construction contractors;
  • links to OFCCP’s Equal Employment Opportunity posters required to be posted by federal contractors;
  • links to the Federal Acquisition Regulations; and
  • a training presentation for federal procurement officers on Equal Employment Opportunity.

Key Takeway: the new website appears to be part of OFCCP’s Town Hall Action Plan, which aims to enhance contractor compliance assistance and increase transparency and communication. As reported here, one of the issues raised by contractors at the OFCCP’s Town Halls held last year was the desire for improved online resources. The Contracting Officer Corner appears to be a concrete step taken by the agency to respond to contractors’ concerns, although its offerings at this time are limited. Time will tell whether the Contracting Officer Corner is the beginning of a go-to resource for contractors, or simply a gesture.

Recognizing the Need for Clarity and Transparency, OFCCP Provides Guidance to Contractors and Compliance Officers Concerning Compensation Audits and Self-Auditing

On August 24, 2018, OFCCP released its long-awaited Directive outlining the standard procedures OFCCP will use during the course of compensation audits of federal government contractors. Concerned that it failed to provide clear guidance to contractors, the Directive rescinds and updates Directive 307, OFCCP’s most recent guidance concerning compensation audits. OFCCP explained that it “believes that fulsome guidance will further support contractors’ ability to conduct meaningful self-audits so that they can proactively identify and address issues with their compensation practices.” The Directive and its attachment and the FAQs are attached here.

OFCCP explained that the purpose of the new Directive was to (1) provide further transparency to contractors regarding the procedures used by OFCCP in conducting compensation audits; (2) support compliance and self-analysis by contractors; and (3) improve compensation analysis consistency and efficiency during compliance evaluations. The Directive was intended to provide more transparency to contractors regarding OFCCP’s procedures and practices for establishing pay analysis groups (PAGs) and conducting statistical analyses and modeling.

OFCCP reiterated in the attachment to the Directive that it is focused on identifying and addressing compensation disparities that are the result of systemic discrimination, including pattern or practice discrimination and disparate impact discrimination. If OFCCP believes there are indicators of systemic discrimination, it will seek to understand the contractor’s compensation system, policies and practices and undertake what it characterizes as a “holistic” review of the contractor’s EEO, diversity and inclusion policies. The attachment explains that, in conducting such a holistic review, it will consider a variety of employment practices that can lead to compensation disparities between similarly-situated employees, including the promotion, training and advancement opportunities, and the assignments offered to employees.

OFCCP also described the categories of evidence it will consider during compliance reviews, including statistical and anecdotal evidence. Anecdotal evidence can be derived from the review of policies, compensation records and other documents and interviews with managers and workers. OFCCP explained that, in determining which cases to pursue, OFCCP will be less likely to pursue a matter if the statistical evidence is not corroborated by non-statistical evidence, unless the statistical evidence is especially strong or OFCCP has identified a pattern of compensation discrimination by the contractor in prior audits.

OFCCP will continue to use the OMB-approved scheduling letter to collect initial compensation data from contractors. Compliance officers will use the information provided by contractors to develop pay analysis groupings (PAGs) of comparable employees. According to the attachment to the Directive, it is OFCCP’s objective to use or create PAGs that mirror the contractor’s compensation system. It notes that, if a contractor provides information concerning its compensation hierarchy and job structure in the submission, OFCCP will attempt to design its analysis based on that structure. OFCCP expects the information provided by the contractor concerning its compensation structure to be reasonable and verifiable and will include groups of sufficient size to undertake a meaningful statistical analysis.

OFCCP declined to identify in the Directive the size of groupings it considers sufficient. However, in the FAQs issued with the Directive, OFCCP states that it will first review each of the PAGs to determine if they contain at least 30 employees under a similar pay system performing similar job functions. It will then try to determine if there are at least 10 employees per variable (e.g., gender, years in position). Thus, if a pay model had five control variables, the PAG would ideally have at least 50 employees. It also noted in the FAQs that, in rare circumstances, OFCCP may rely on non-statistical, or cohort, data to assess small job groups. If a contractor declines to provide proposed groupings or the information necessary for OFCCP to establish PAGs, OFCCP will conduct its preliminary desk audit based on either EEO-1 or AAP job groups, if they are reasonable and sufficiently large.

After it identifies appropriate PAGs, OFCCP will then control for factors that impact pay within the PAGs, such as sub-job groupings, functions, units and titles, as appropriate. During this preliminary analysis, OFCCP will also control for tenure, full-time status and other appropriate factors. If the results of the desk audit warrant additional review, OFCCP will seek additional information to understand the contractor’s compensation systems, factors that drive compensation decisions, and job structure. Based on this additional information, OFCCP may broaden or narrow its preliminary PAGs.

OFCCP identified principles that it will use to conduct statistical analyses, both during and after the desk audit phase:

  • It will use multiple linear regression analysis (MRA) to help reduce false negative and positive results;
  • It will analyze (1) base pay, (2) total compensation and, if necessary (3) individual components of pay (e.g., bonuses or commissions);
  • It will convert salary to a log of salary using a regression model; and
  • It will analyze statistical outliers to test whether the PAGs have been composed properly.

In analyzing pay disparities using these models and principles, OFCCP will evaluate males and females in separate regression models. OFCCP noted, however, that it may evaluate the interaction of sex and race in future models. For race and ethnicity, OFCCP will create a variable for each race and ethnicity category with more than five employees. OFCCP provided the following guidance concerning the factors it will apply in undertaking a MRA:

  • It will control for components of employee tenure (e.g., time in position, time with the company) separately;
  • It will not consider squared terms (factors, such as time in position, that level out over time) until after the initial desk audit phase;
  • It will control for education categories and performance ratings and rakings, combining them as necessary;
  • It may use age as a proxy for prior experience only at the desk audit phase;
  • Per the FAQs, it may control for job title if pay legitimately varies based on job title.
  • It will control for job level or grade, combining them as necessary; and
  • It will evaluate market salary surveys, if provided by the contractor, on a case-by-case basis if job and pay differentials are not sufficiently accounted for.

Before OFCCP will apply any of these (or other relevant) factors, it will test them for neutrality to make certain they do not have a disparate impact on any protected category. OFCCP also adopted the “rule of five” recently used by the National Office statisticians in compliance reviews and conciliation negations. It described this rule in the FAQs in discussing the circumstances when job title would be a relevant factor:

OFCCP will attempt to control for . . . job title if pay legitimately varies by job title. In many instances, controlling for factors like grade level, department, or business unit sufficiently distinguishes functional differences in job titles . . .. To capture meaningful pay differentials across the categories, OFCCP requires that each category contain at least five observations. If a category has fewer than five observations, OFCCP will join those observations with their ordinal counterpart (e.g., nearest grade or level) or to the category with the nearest average pay. With this approach, OFCCP meaningfully controls for pay differentials across job titles while minimizing the risk of suturing the model with low frequency employee controls.

At the end of the attachment, OFCCP identifies three practices it will use to facilitate transparency and consistency and the resolution of findings through conciliation:

  1. At the conclusion of the desk audit, OFCCP will notify the contractor in writing of the general nature of any preliminary compensation disparities. For instance, a contractor may be informed that preliminary disparities have been found in “compensation policies and practices with respect to women in production, sales and management.”
  2. Consistent with Directive 2018-01, OFCCP will attach to any pre-determination notice (PDN) the individual-level data necessary for the contractor to replicate OFCCP’s PAGs and regression results. The contractor will have the opportunity to offer a non-discriminatory explanation for the preliminary findings before a violation will be found. The PDN and the contractor’s response will be reviewed by the National Office. The individual-level data will also be attached to any Notice of Violation (NOV) issued to the contractor after the National Office’s review is completed.
  3. To facilitate conciliation, OFCCP will include professional labor economists or statisticians from the Branch of Expert Services in the conciliation process to clarify OFCCP’s variable coding, statistical methods and findings and to answer questions about the process and assumptions used in computing back pay.

With respect to point 2, OFCCP explained in the FAQs that, if a contractor provides factors that may explain the disparities in pay, OFCCP’s statisticians and other field and national office staff will coordinate with representatives from the DOL’s Regional Office of the Solicitor to decide on a preliminary analytical model. The contractor will be given an opportunity to provide additional information to OFCCP regarding its compensation systems and practices. Based on the additional information provided by the contractor, the preliminary model may be refined.

The Directive went into effect on August 24, 2018. It will apply to all compliance evaluations scheduled on or after that date. The Directive states that it will apply to “open reviews to the extent they do not conflict with OFCCP guidance or procedures existing prior to the effective date” of the Directive.

After we have an opportunity to digest the detailed standards set forth in the Guidance and associated documents and obtain input from OFCCP officials, we will provide a series of blogs entitled “Demystifying OFCCP’s New Compensation Guidance” that reviews – in plain text – the three key elements of the Guidance and provides practical advice for compliance with them.

 

OFCCP Acting Director Leen Announces New Contractor Certification Program

At his closing remarks at the National Industry Liaison Group’s 2018 annual conference, Acting OFCCP Director Craig Leen announced that the OFCCP is working on a contractor certification program. Although light on details, Acting Director Leen forecast a system where contractors that did not certify compliance with their affirmative action obligations would be targeted for compliance evaluations.

Key Takeaway: For government contractors that take their compliance obligations seriously, a certification program that would reduce compliance evaluations should be a welcome development. OFCCP has noted in the past that only a very small percentage – as low as 2% – of compliance evaluations end in a finding of discrimination. A program that permits OFCCP to focus on contractors who are most likely not in compliance would not only spare contractors who work hard to achieve compliance from unnecessary and burdensome compliance evaluations, it would also permit OFCCP to be more effective.

As with most things, the devil will be in the details. We will continue to monitor this potential new program and report on any new developments.

Breaking News: OFCCP Issues New Directive Instructing Staff to Respect Contractors’ Religious Beliefs in Enforcing Executive Order 11246

On August 10, 2018, OFCCP Acting Director Craig Leen issued Directive 2018-03  (the “Directive”), the purpose of which is to “incorporate recent developments in the law regarding religion-exercising organizations and individuals.”

Most of the Directive addresses OFCCP’s regulations regarding protection from discrimination on the basis of religion and recent Executive Orders and court decisions that address the federal government’s “duty to protect religious exercise – and not to impede it. The practical import of the Directive comes at the end, where it instructs OFCCP staff “to take these legal developments into account in all their relevant activities, including when providing compliance assistance, processing complaints, and enforcing the requirements of E.O. 11246.” The Directive also anticipates future rulemaking on this topic.

Key Takeaway: When President Trump was sworn into office, many worried that his Administration would undo President Obama’s amendment of E.O. 11246  to include gender identity and sexual orientation as protected characteristics. On January 31, 2017, the Trump Administration announced that E.O. 11246, as amended by E.O. 11478, would “remain intact .” As we reported at the time , the statement followed press reports that the Trump Administration was contemplating reversing the expansion or adding religious freedom provisions.

The new Directive appears aimed at addressing the concerns of religious organizations that contract with the federal government with the expansion of E.O. 11246 to include sexual orientation and gender identity protections.

Breaking News: OFCCP Issues New Directive Ordering Focused Compliance Evaluations

As we previously reported , Acting OFCCP Director Craig Leen, made news at the National Industry Liaison Group annual conference last week when he announced that OFCCP would begin focused reviews of contractors. Just one week later, on August 10, 2018, OFCCP issued Directive 2018-04  (the “Directive”), directing that a portion of future scheduling lists include focused reviews aimed at each of the three authorities OFCCP enforces: Executive Order 11246 (the “EO”) (equal employment opportunity regardless of race, color, religion, sex, sexual orientation, gender identity, or national origin); Section 503 of the Rehabilitation Act (“Section 503”) (equal employment for individuals with disabilities), and the Vietnam Era Veterans’ Readjustment Assistance Act (“VEVRAA”) (equal employment for protected veterans).

The Directive notes that focused reviews are part of its initiative to “ensure compliance with equal employment opportunity and anti-discrimination regulations.” Per the Directive, starting in Fiscal Year 2019, a portion of each year’s compliance evaluation scheduling lists will include focused reviews as to each of the EO, Section 503, and VEVRAA. The Directive anticipates that for Section 503 focused reviews, compliance officers would:

  • Review policies and practice related solely to Section 503 compliance;
  • Interview managers responsible for equal employment opportunity and Section 503 compliance;
  • Interview employees impacted by the contractor’s Section 503 policies; and
  • Evaluate hiring and compensation data, as well as handling of accommodation requests.

The Directive anticipates a “similar” approach would be used for EO and VEVRAA focused reviews.

In good news for contractors, OFCCP staff will “develop a standard protocol for conducting the focused reviews” and make the protocols available to the pubic prior to the issuance of the next scheduling list. In addition, OFCCP will develop training for both OFCCP staff and contractors “to provide guidance as to the focused reviews.”

Key Takeaways. Contractors must ensure that they are in compliance with all aspects of OFCCP regulatory requirements and be prepared for compliance evaluations that scrutinize particular components of their compliance efforts. In the past, compliance evaluations tended to focus on equal employment opportunities and discrimination on the basis of race and sex and not on the other protected classes under OFCCP jurisdiction. That is clearly no longer the case.

Even if contractors are not chosen for a focused review, they can expect that OFCCP will give greater focus to compliance with OFCCP disability and protected veterans discrimination and affirmative action requirements in any compliance evaluation.

For this reason, contractors are well advised to ensure, with respect to Section 503 compliance, that (1) they are tracking and are undertaking affirmative efforts to achieve the 7% benchmark; (2) they have adopted and implemented effective disability accommodation and discrimination policies; (3) they are performing annual reviews of job requirements; (4) they are undertaking and documenting the interactive process for accommodating employees with disabilities; and (5) their facilities comply with ADA accessibility requirements.

With respect to VEVRAA compliance, contractors should ensure that they, among other requirements, are (1) tracking and are undertaking affirmative efforts to achieve the hiring benchmark for protected veterans; (2) inviting candidates, applicants and new-hires to self-identify as protected veterans; (3) updating their equal opportunity clause to include protected veterans; and (4) listing their employment openings with the appropriate state or local employment service delivery system.

 

Breaking News From The ILG Conference: OFCCP To Bring Back Focused Section 503 Reviews

On August 2, 2018, during an impassioned speech at the National Industry Liaison Group’s annual conference in Anaheim, California, OFCCP Acting Director Craig Leen announced that the agency will bring back “focused reviews” looking at contractors’ Section 503 compliance.

He made his remarks during the “Leading Practices in Disability Inclusion” break out session at the conference, at which he shared his personal experiences and why he is so committed to eliminating disability discrimination. He explained that the focused review would include an onsite visit and interviews with managers and the contractor’s ADA coordinators. Acting Director Leen stated he would also like the reviews to look at hiring practices, the contractor’s efforts to meet the 7% benchmark, and how the contractor handles requests for reasonable accommodations.

To emphasize his point, Acting Director Leen stated that “compliance with Section 503 is a priority of” OFCCP, and this focus has the support of Secretary of Labor Acosta.

Key Takeaway. Compliance with Section 503 and its implementing regulations is now clearly a focus of OFCCP. Even if contractors are not chosen for a focused review, they can expect that compliance with OFCCP’s disability discrimination and affirmative action requirements will be a focus of any compliance evaluation. For this reason, contractors are well advised to ensure that (1) they are tracking and are undertaking affirmative efforts to achieve the 7% benchmark; (2) they have adopted and implemented effective disability accommodation and discrimination policies; (3) they are performing annual reviews of job requirements; (4) they are undertaking and documenting the interactive process for accommodating employees with disabilities; and (5) their facilities comply with ADA accessibility requirements.

OFCCP Issues “What Contractors Can Expect” Guidance

On August 2, 2018, OFCCP issued a new publication entitled “What Contractors Can Expect .” The publication coincided with OFCCP Acting Director Craig Leen’s well-received presentation at the National Industry Liason Group’s national conference in Anaheim, California, where Proskauer partners Connie Bertram and Guy Brenner are in attendance.

OFCCP had promised the “What Contractors Can Expect” publication in its May 1, 2018 Town Hall Action Plan . The document states that it provides “the general expectations that often guide interactions between federal contractors and OFCCP.” Although the document uses the term “expectations” as opposed to “rules” or “rights,” the publication clearly aims to address contractors’ concerns about dealing with the agency and foster better relations between OFCCP and the contractor community. The expectations include:

  • Access to Accurate Compliance Assistance Material. OFCCP states that it is “committed to providing clear, concise, and practical compliance assistance” in the form of “technical assistance guides, factsheets and brochures, ‘Frequently Asked Questions’ or FAQs, guidance documents, directives, webinars, and email.”
  • Timely Responses to Compliance Assistance Questions. OFCCP, as part of its effort to increase the compliance assistance part of its mission, is committed to providing more timely responses to inquiries. It states that “[c]ontractors can typically expect a reply to Help Desk inquiries and emailed compliance assistance questions within 3-4 business days.” Where more time is needed, OFCCP provides that contractors “can expect that OFCCP will provide notice of the delay and assurance that OFCCP’s reply, when provided, is responsive to the issues raised.”
  • Opportunities to Provide Meaningful Feedback and to Collaborate. OFCCP states that contractors “can expect OFCCP to provide them with opportunities to submit feedback on the quality and quantity of the agency’s compliance assistance offerings and, periodically, on their experiences during their most recent compliance evaluations.” OFCCP also indicates that it will engage with contractors “on the development of new compliance assistance material, contractor training, and other matters that may support contractor compliance.” Consistent with this expectation, Ms. Bertram was consulted during the conference by a member of OFCCP’s National Office regarding Ms. Bertram’s experiences working with the member’s program and how the program’s performance could be improved.
  • Professional Conduct by OFCCP’s Compliance Staff. In response to criticism about what many contractors perceive to be heavy-handed tactics, OFCCP makes clear that in interacting with the agency contractors “can expect to receive prompt, courteous, and accurate information during compliance evaluations and complaint investigations.” However, OFCCP notes that professional courtesy is a two way street, as “the perceived quality of an engagement with OFCCP staff can be influenced by several factors, including the specificity and accuracy of the information contractors provide, and the timeliness and thoroughness of their responses to document production requests during compliance evaluations and complaint investigations.”
  • Neutral Scheduling of Compliance Evaluations. OFCCP states that contractors “can expect OFCCP to use a neutral selection system to identify contractors for compliance evaluations.” Addressing concerns raised at its recent town hall meetings, OFCCP states that “Individual contractors are never ‘targeted’ though OFCCP may focus its resources on particular industries or sectors, geographic regions, or types of employment practices,” and that “OFCCP never schedules a contractor for a compliance evaluation because that contractor sought compliance assistance.”
  • Reasonable Opportunity to Discuss Compliance Evaluation Concerns. Responding to concerns about lack of transparency during compliance evaluations, OFCCP states that contractors “can expect to have a reasonable opportunity to discuss issues that may affect the progress or results of their compliance evaluation or complaint investigation.” OFCCP encourages these discussions to take place with the relevant compliance officer in the first instance, but “recognizes that some issues may warrant elevating a discussion to a higher level with management in the district office and then, if necessary, the regional office,” and even the national office. OFCCP believes that such interactions “can remove uncertainty and clarify areas of misunderstanding.”
  • Timely and Efficient Progress of Compliance Evaluations. Among other things, OFCCP provides that contractors should expect that when asked for information they will be provided with “reasonable production timelines … as determined in light of all relevant facts and circumstances.” OFCCP also commits to providing “clear explanations of OFCCP’s compliance evaluation processes and periodic status or progress updates as evaluations progress.” The agency does note that its ability to conduct timely and efficient compliance evaluations is “greatly influenced by the level of cooperation OFCCP receives, and the quantity, quality, and timeliness of the information that contractors provide.”
  • Confidentiality. OFCCP states that contractors “can expect that the information they provide during a compliance evaluation will be kept confidential. OFCCP keeps this contractor information, including but not limited to personnel records and salary data, confidential to the maximum extent allowed by law.”

OFCCP Director Resigns

Ondray T. Harris, Director of the Office of Federal Contractor Compliance Programs (“OFCCP”), resigned on July 27, 2018. No public explanation for his resignation has been provided, which came only eight months after he assumed the position.

Reports indicate that Craig Leen, Senior Advisor to the OFCCP, will step into the role as Acting Director of the agency. On July 25, 2018, OFCCP’s updated its website’s personnel page to refer to Mr. Leen as its “Deputy Director.” Both Mr. Harris and Mr. Leen are credited with taking steps to improve relationships between the OFCCP and the federal government contracting community, and Mr. Harris’ resignation is not expected to lead to a change in this new approach.

The announcement came just over one week before Mr. Harris was slated to speak about the OFCCP at the National Industry Liaison Group’s annual conference. On July 27, 2018, the NILG announced that Mr. Leen would replace Mr. Harris as the keynote speaker at the event.

Proskauer Publishes Article on Federal and State Laws Addressing the #MeToo Movement

Connie Bertram published an article in the June issue of OFCCP Digest titled “Federal Tax Reforms and Proposed State Laws Try to Address the Concerns Raised by the #MeToo Movement.” The article focuses on the more than 125 bills that have been introduced in 2018 aimed at eliminating sexual harassment and abuse in the workplace. As discussed in more detail in the article, federal, state, and local efforts to discourage – or even prohibit – settlement agreement provisions or arbitration agreements limiting an employee’s right to publicly disclose and/or pursue sexual misconduct claims are changing the employment landscape in important ways and quickly gaining momentum nationwide.

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