On April 9, 2019, in New York City, OFCCP hosted a town hall focused on the “financial industry and related fields.” Guy Brenner of Proskauer attended what was an enlightening and informative event.

The purpose of the town hall was to provide government contractors in the financial sector the opportunity to share their views with OFCCP. To that end, participants engaged in a number of brainstorming sessions, sharing their views on what OFCCP can do to help contractors, as well as ideas to improve diversity and inclusion results.

But the key takeaway from the day was the information shared by OFCCP Director Craig Leen regarding upcoming initiatives. Here are the highlights:

  • Focus on promotions. Director Leen started off the day by sharing that OFCCP is trying to increase the number of women in senior roles at companies. He stated that it was an area “where we can make a big impact.” To that end, OFCCP is going to focus more on promotions during audits, and will create new focused reviews on promotions of women and women of color. Leen shared his view that promotions (or lack thereof) impact pay equity. He also noted concern about the role inequitable parental leave policies may have on opportunities for women to advance in the workplace.
  • AAP Verification Initiative. Leen stated that the AAP verification initiative is already in effect, noting that OFCCP has worked AAP compliance into a number of its processes. For example, during Section 503 Focused Reviews OFCCP will require contractors submit their Executive Order 11246 AAPs in part to ensure they have been prepared. In addition, during establishment compliance reviews, contractors must provide their AAPs within 30 days of the issuance of the scheduling letter and no extensions will be provided. Leen shared that compliance officers will also be checking the SAM database to see how contractors under review have answered the annual AAP preparation inquiry and address any discrepancies between answers provided in SAM with what is observed during audits. Finally, OFCCP is currently working on a new collection effort whereby contractors would be required to certify AAP compliance and even submit AAPs annually to OFCCP through a web portal. Such initiatives would go through notice and public comment, and would need approval of the Office of Management and Budget.
  • Additional Pay Guidance. OFCCP is preparing a new guidance document for contractors focused on how to form pay analysis groups. Leen said the guidance should be issued “very soon.”
  • Reducing the length of audits. Leen believes it takes OFCCP “way too long to do audits.” He aims to reduce the length of audits, and shared that he has already achieved some success. The average length of desk audits is now roughly thirty days, down from over 100 days. Leen appears to now be focused on shortening the time devoted to conciliation efforts. He shared that while the agency is committed to the process, it should not take 2 or 3 years to complete. He suggested that conciliation should last no more than six months.
  • Opinion Letters and Online Help Desk. Leen stated that these resources which were announced in December  would be available “soon.”
  • New Awards Programs. Leen shared that OFCCP is considering some new recognition programs, suggesting that the agency might create an award for contractors with Functional Affirmative Action Programs, as well as recognizing contractors that demonstrate a strong commitment to compliance during audits.

No Let Up. As the points above make clear, OFCCP is and will continue to be quite active in the future.

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Photo of Guy Brenner Guy Brenner

Guy Brenner is a partner in the Labor & Employment Law Department and leads the Firm’s Washington, D.C. Labor & Employment practice. He is head of the Government Contractor Compliance Group, co-head of the Counseling, Training & Pay Equity Group and a member…

Guy Brenner is a partner in the Labor & Employment Law Department and leads the Firm’s Washington, D.C. Labor & Employment practice. He is head of the Government Contractor Compliance Group, co-head of the Counseling, Training & Pay Equity Group and a member of the Restrictive Covenants, Trade Secrets & Unfair Competition Group. He has extensive experience representing employers in both single-plaintiff and class action matters, as well as in arbitration proceedings. He also regularly assists federal government contractors with the many special employment-related compliance challenges they face.

Guy represents employers in all aspects of employment and labor litigation and counseling, with an emphasis on non-compete and trade secrets issues, medical and disability leave matters, employee/independent contractor classification issues, and the investigation and litigation of whistleblower claims. He assists employers in negotiating and drafting executive agreements and employee mobility agreements, including non-competition, non-solicit and non-disclosure agreements, and also conducts and supervises internal investigations. He also regularly advises clients on pay equity matters, including privileged pay equity analyses.

Guy advises federal government contractors and subcontractors all aspects of Office of Federal Contract Compliance Programs (OFCCP) regulations and requirements, including preparing affirmative action plans, responding to desk audits, and managing on-site audits.

Guy is a former clerk to Judge Colleen Kollar-Kotelly of the US District Court of the District of Columbia.