Government Contractor Compliance & Regulatory Update

OFCCP Seeks Applicants for “Ombudsman” Position

Quick Hit: OFCCP has requested applications for its newly created “Ombudsman” position. The opening follows the issuance of Directive 2018-09 (the “Directive”), which announced the “planned implementation of an Ombud Service” to address specific concerns “raised by OFCCP external stakeholders.”

Key Takeaways: OFCCP issued Directive 2018-09 in September. As we noted in this blog at the time, the Directive did not establish an Ombud Service – it merely announced OFCCP’s intention to implement the service. The posting of the “Ombudsman” position is OFCCP’s first concrete step (which has been made public) towards actually implement the service.

OFCCP’s choice of who will serve as the first Ombudsperson will be a significant decision. The individual chosen will be responsible for designing the Ombud Service. As noted in our prior post, the utility of the new Ombud Service will depend on the details of the program which have yet to be established. The choice of the first Ombudsperson will give contractors the first sense of what the Ombud Service may look like.

Obviously, the contractor community would welcome the selection of a person who has experienced OFCCP oversight from a contractor’s perspective. From the posting, however, OFCCP is not specifically seeking such experience in its first Ombudsperson; instead, OFCCP seeks someone with one-year of experience “in facilitating the resolution of disputes with regulated businesses, industries and other external stakeholders; and conducting a wide range of qualitative and quantitative analyses to assess and improve program effectiveness.”

When OFCCP announces the identity of the new Ombudsperson we will report it here.

More Detail: As set forth in the Directive, OFCCP is planning to establish an Ombud Service to “facilitate the fair and equitable resolution of concerns raised by OFCCP’s external stakeholders, conduct independent and impartial inquiries into issues related to the administration of the OFCCP program, and propose internal recommendations to continuously improve the quality of services OFCCP provides to its stakeholders.” The OFCCP’s job posting is the first public step the agency has taken to establish this service.

The Ombudsperson’s main responsibilities, as set forth in the job posting, are to:

· Design[], implement[], and execute[] the Ombud Service to bring an impartial and independent perspective to facilitate communication with external stakeholders on OFCCP matters.

· Manage[] all aspects of OFCCP’s Ombud Service. Plan[] work to be accomplished, set[] and adjust[] priorities and prepare[] schedules for completion of work, and provide[] recommendations to the director regarding resolution of concerns raised by external stakeholders.

· Provide[] regular reports to the director on Ombud activities, and ad hoc reports or recommendations on a range of issues related to OFCCP programs.

· Provide[] recommendations to the director to improve the efficiency and effectiveness of internal OFCCP operations in support of achieving the agency’s priorities, goals, and objectives.

For a more detailed review of the Directive and the creation of the Ombud Service, see our previous reporting on the subject here.

Proskauer Delivers Comprehensive Webinar on OFCCP Developments

On January 16, 2019, Proskauer partner Guy Brenner and Resolution Economics Director Rick Holt delivered a webinar entitled: OFCCP – The Year That Was and the Year Ahead. The jam-packed presentation provided legal, practical, and econometric insights into the numerous actions taken by the Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) in 2018, and looked ahead at what contractors can expect from the agency in 2019.

Over the course of the 70-minute presentation, Guy and Rick shared their perspectives regarding:

  • OFCCP enforcement trends
  • The agency’s new compensation directive, identifying both the positive aspects and short-comings in the policy
  • The agency’s focus on improved efficiency and its efforts toward that end, including:
      • The AAP Verification Initiative Directive
      • Rescinding the Active Case Enforcement Directive
      • Creation of new Early Resolution Procedures
      • Encouragement of contractors’ use of functional affirmative action programs
      • Announcement of focused compliance evaluations
  • OFCCP’s transparency and consistency initiatives, including:
      • Proactively posting information regarding compliance evaluation scheduling and conciliation agreements
      • New detailed procedures governing compliance evaluations
      • Development of a Help Desk question and answer database
      • Introduction of Opinion Letters to provide contractor guidance
  • OFCCP’s efforts to improve contractor relations
  • Expected trends and developments for 2019

If you would like to experience this well-received webinar, it is available at this link: Download File

Join Our Webinar: OFCCP – The Year That Was and the Year Ahead

Join us for a webinar on Wednesday, January 16, 2019, to review the significant changes and initiatives implemented by the Office of Federal Contract Compliance Programs in 2018, what they mean for federal contractors and what federal contractors can expect in 2019. Partner Guy Brenner and labor economist Dr. Rick Holt, a Director at Resolution Economics, will address topics including:

  • The practical consequences of the new compensation directive
  • What the new contractor certification program will mean for contractors
  • OFCCP’s rollout of focused compliance evaluations and what contractors should be doing to prepare
  • Anticipated developments in 2019

To register and for more information:

Craig Leen Formally Named Director of OFCCP

The Office of Federal Contractor Compliance Programs (“OFCCP”) has announced that Craig Leen has officially been named the Director of the Office of Federal Contractor Compliance Programs (“OFCCP”).  Director Leen has served as Acting Director since the summer when then-Director Ondray Harris suddenly resigned.  Since Director Leen began serving as Acting Director, the OFCCP has announced a number of new initiatives with the stated purpose of aiding contractors in compliance and improving the relationship between contractors and the OFCCP.

BREAKING: The Government Shutdown Is Officially Here – What Does It Mean For Federal Contractors?

As of midnight on December 21, 2018, portions of the government have been shut down until Congress is able to pass a spending bill. Due to ongoing political fights surrounding the border wall, it remains unclear when the government will be fully operational again. In addition to the 400,000 government workers the Washington Post anticipates will be furloughed without pay during the shutdown, the closure of large portions of the federal government also has implications for government contractors. Our previous post on the implications of a shutdown on federal contractors is available here.

Recipients of the 2018 HIRE Vets Medallion Award Announced

Quick Hit: The U.S. Department of Labor has announced the recipients of the 2018 HIRE Vets Medallion Program Demonstration Award. The award recognizes employers who hire veterans and take efforts to establish employee development programs and veteran-specific benefits to improve their retention. The list of successful employers  honored as the 2018 award recipients includes small businesses, community-based nonprofits, and national companies.

Key Takeaway: Award recipients receive a certificate stating the award year and a digital image of the HIRE Vets Medallion Award, which they have the opportunity to utilize in marketing their company as a veteran-friendly business. Although the Veterans’ Employment and Training Service (VETS) accepted only a limited number of applications in 2018, the 2019 HIRE Vets Medallion Program will be open to all employers and those who successfully meet the program requirements will receive the awards. The Department of Labor will begin accepting applications for the 2019 HIRE Vets Medallion Award on January 31, 2019, the link to apply is available here:

More Detail:

The Department of Labor established the HIRE Vets Program under the Honoring Investments in Recruiting and Employing American Military Veterans Act (“HIRE Vets Act”), signed by President Trump on May 5, 2017. The program recognizes employer efforts to recruit, employ, and retain veterans. Employer-applicants meeting criteria established in the rule receive a “HIRE Vets Medallion Award.”

There are different awards for large employers (500-plus employees), medium employers (51-499 employees), and small employers (50 or fewer employees). Additionally, there are two award tiers: Gold and Platinum. For each award, the employer must satisfy a set of criteria. For example, a large employer will qualify for a platinum award if:

  1. its veterans hired during 2018 calendar year is not less than 10% of all employees hired,
  2. its retention of veterans hired during 2017 calendar year is not less than 85% of veterans hired and retained for 12 months,
  3. it had a veteran organization or resource group established and in existence on December 31, 2018,
  4. it had a leadership program established and in existence on December 31, 2018,
  5. it had a dedicated HR professional for veteran employees,
  6. it provided a pay differential program,
  7. it made a tuition assistance program available, and
  8. it did not have any of the labor law violations identified in 20 CFR § 1011.120.

A complete list of program requirements and criteria is available here:

POTENTIAL PARTIAL GOVERNMENT SHUTDOWN – What Government Contractors Need To Know

A partial government shutdown may soon be upon us.  According to the Washington Post, “[t]he White House and a number of federal agencies have started advanced preparations for a partial government shutdown, as President Trump and congressional Democrats appear unlikely to resolve their fight over a border wall before some government funding lapses at week’s end. ” Unlike past shutdowns, because Congress has already passed, and the President has signed, spending bills into law that apply to approximately 75% of government spending, a government shutdown will be far less extensive than those experienced in the past. If one occurs, the departments of the Interior, Agriculture, State, Housing and Urban Development, Treasury, Commerce, and Homeland Security would lose funding – and government contractors with existing contracts with those agencies could face a temporary loss of funding. Continue Reading

New OFCCP Directive Introduces Early Resolution Procedures For Compliance Evaluations

Quick Hit: OFCCP’s new Directive 2019-02 sets forth Early Resolution Procedures (“ERP”) to resolve violations discovered during a desk audit of contractors with multiple establishments.  OFCCP touts that “ERP allows OFCCP and contractors with multiple establishments to cooperatively develop corporate-wide compliance with OFCCP’s requirements.”  Contractors who successfully resolve violations through ERP will be spared full scale compliance evaluations, but will have to agree to conciliation agreements that will include five years of monitoring and commitments to rectify similar issues at some or all of the contractor’s other establishments.  In return, contractors will receive a five-year moratorium on compliance evaluations of some or all of their establishments. Continue Reading

OFCCP Rescinds Active Case Enforcement Procedures

Quick Hit:  Office of Federal Contractor Compliance Programs (“OFCCP”) has issued Directive 2019-01 (the “Directive”), which rescinds Directive 2011-01 which established OFCCP’s now-defunct Active Case Enforcement or “ACE” policy.  Through ACE, OFCCP conducted fewer but more intensive compliance evaluations of government contractors.  In issuing the Directive, OFCCP is formally ending ACE, while adopting an approach it contends keeps the better components of ACE while allowing OFCCP to conduct more compliance evaluations in a more efficient manner. Continue Reading

OFCCP Introduces New Directive Enhancing Compliance Guidance Programs For Contractors

Quick Hit:  The Office of Federal Contractor Compliance Programs (“OFCCP”) issued Directive 2019-03 (the “Directive”), which announces two steps the agency will take to enhance compliance assistance for contractors.  OFCCP will now make “certain Help Desk inquires and responses dynamically available and searchable as a self‐service option on OFCCP’s website.”  OFCCP will also begin using Opinion Letters to provide guidance to the contracting community in response to fact-specific inquiries from contractors and their employees.  The Directive envisions that these changes will provide a resource for contractors, thereby enhancing compliance. Continue Reading