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.