2011 – What To Expect From The New OFCCP

Affirmative Action "Breaking News"

With the 2010 Year coming to an end, we see the new face of the OFCCP beginning to emerge. The rising clout of OFCCP began with a 35% increase to its staff, followed by the release of Director Patricia Shiu’s six-year business plan for OFCCP.   What we will see moving forward is the increased number of OFCCP audits, enforcement action, contractor debarment, and record financial penalties. Director Shiu is clearly keeping her promise that OFCCP is in a “Restore, transform and enforce” mode.

As of October 31, 2010, 645 companies and over 5,000 individuals have been declared ineligible for federal contracts and subcontracts because they violated Executive Order 11246; Section 503 of the Rehabilitation Act of 1973 (as amended) 29 U.S.C. Sec. 793 (“Section 503”); and/or the affirmative action provisions of the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended, 38 U.S.C. Sec. 4212 (“Section 4212”).   OFCCP announced that this number would increase during 2011.
OFCCP will aggressively measure the extent of a contractor’s outreach for job groups that are underutilized. Contractors that have a habit of delaying the preparation of their A.A.P. will find that current audits will test outreach efforts vs. areas of underutilization. OFCCP will measure these outreach efforts to determine at what point they were put into place. Contractors that prepare their A.A.P. months after the A.A.P. start date will find it difficult to provide measurable outreach efforts for their entire A.A.P. year and will find themselves faced with a two-year conciliation agreement which the C.E.O. or President must sign off on. The conciliation agreement will involve recordkeeping requirements and will require additional follow up audits.OFCCP will continue to focus on contractors’ outreach efforts to community-based organizations, state employment agencies, and veterans groups.
OFCCP will be more active in enforcing compensation cases involving federal contractors, including “glass ceiling” cases.  OFCCP will be enforcing the rules not only for blue-collar and low wage-workers but will also look at pay disparities at higher pay grades.   Currently, OFCCP is sending ALL compensation data collected during audits directly to the Department of Statisticians in hopes of uncovering not only systemic compensation issues but all pay disparities, no matter how small.
Note: OFCCP is expected to rescind the 2006 Interpretive Standards on Compensation Discrimination.
OFCCP Top Three Priorities
The top three OFCCP priorities include: strengthening Enforcement, implementing a robust regulatory agenda, and broadening outreach to identify more individual complaints from workers.

1.  Strengthen Enforcement

Increasing on-site investigations – OFCCP has stated that on-site audits will no longer be the exception but rather the norm.

OFCCP will be more aggressive in how they resolve cases by:

  • Moving from “good faith” to accountability measures
  • Improving make-whole remedies for affected workers
  • Pursuing litigation, debarment, and other sanctions with the worst offenders

2.  OFCCP Regulatory Agenda

VEVRAA – Veterans

  • Will publish new rules next winter
  • Will require federal contractors and subcontractors to strengthen A.A.P.’s and measure their EEO efforts

Section 503 – Individuals with Disabilities

  • Seek public input on key questions around
  • Effective employment practices
  • Available data
  • Ways to strengthen linkage agreements

Construction – Women and Minorities

  • Increase hiring of women and minorities in construction jobs
  • Enhance the effectiveness of construction contractors’ A.A.P.’s, especially around recruitment, training, and apprenticeships
Pay Equity – Women
  • Develop new compensation data collection instrument
  • Rescind 2006 Interpretive Standards on Compensation Discrimination
  • Improve coordination with sister federal agencies on this issue

3.  Broaden Outreach Efforts

  • Goal: to prioritize and increase individual complaints
  • Individual complaints yield more than double the rate of discrimination findings vs. neutral scheduling process
  • Increase community-based outreach to civil and workers’ rights groups and to advocacy and service-providing organizations
  • Engage acquisition officers across federal agencies
  • Focus on diversity in hiring on construction and ARRA projects
  • Play a leadership role on the President’s National Equal Pay Enforcement Task Force
  • Represent the U.S. Department of Labor on White House Initiative on Asian American and Pacific Islanders Federal Interagency Working Group
  • The current administration has increased the agency’s staff has grown by 35%, and its budget has increased by 25%.
OFCCP By The Numbers
  • The network of 6 regional and 45 district and area offices
  • Team of 782 employees, including almost 200 newly hired compliance officers
  • Evaluate more than 7,500 establishments annually
  • Just completed more than 450 audits of companies receiving contracts under the American Recovery and Reinvestment Act (ARRA)
  • Over 34 cases have been referred to the Solicitor of Labor for litigation in F.Y. 2010 – more than double from 2009 and triple from 2008
Examples of Recent Cases
Tyson Fresh Meats (Joslin, IL)
  • Largest supplier of premium beef and pork
  • Found discrimination against women in entry-level jobs
  • Request back pay for more than 750 rejected applicants and offers of employment for more than 100 affected women
  • Second largest Coke bottler in the nation
  • Negotiated $495,000 in back wages and interest for 95 African-American and Hispanic job seekers and offers of employment for at least 23 class members
  • The settlements also include restoring seniority and benefits to those who are hired – retroactive to 2002
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