During a web chat to discuss the Office of Federal Compliance Programs’ (OFCCP) regulatory agenda, OFCCP Director Patricia Shiu touted the agency’s recent accomplishments and fielded a number of questions about various OFCCP regulations and other initiatives. The agency has been considerably more active on the enforcement and regulatory front this year. In fact, Shiu claimed that in comparison to the same time period last year, the agency completed 44 financial conciliation agreements that include $5.66 million in awards and 657 job offers for 8,090 individuals in the first 6 months of Fiscal Year 2011, representing a 25 percent increase in agreements and more than double the amount in monetary awards.

Many chat participants questioned Shiu about the OFCCP’s intent to create a new compensation data collection tool, although she was able to provide few concrete answers. The OFCCP’s regulatory agenda states that it is in the initial stages of developing this “new strategic compensation data collection tool that will effectively identify contractors that are likely to violate” Executive Order 11246, which prohibits discrimination in federal contracting. Shiu told one chat participant that the advance notice of proposed rulemaking (ANPRM) on this initiative “is in the final stages of review and we expect to publish it within the next few weeks.” Upon further questioning, Shiu explained that the ANPRM would consist of “a series of questions seeking comment on various aspects of a possible tool.” Shiu stated that the OFCCP has no plans to reissue the old Equal Opportunity (EO) Survey, and that the proposal under development would focus on the collection of compensation data, although the “OFCCP’s experience with the EO Survey and public comments in response to the current rulemaking will inform development of the compensation data collection tool.”

Another topic of interest during the chat was the agency’s plan to proceed with its proposed rule revising the regulations implementing the nondiscrimination and affirmative action provisions of the Vietnam Era Veterans Readjustment Assistance Act. Shiu anticipated that the agency would publish a final rule on this issue in the spring of 2012. In response to one inquiry, Shiu explained that the agency had no intent to withdraw the proposed rule, but was “actively seeking the specialized knowledge and input of all interested parties. OFCCP welcomes these various perspectives and believes that they will assist us in developing a Final Rule that achieves the goal of increasing employment opportunities for protected veterans while not creating undue burdens for contractors.” Littler Mendelson submitted its own comments (pdf) on this proposed rule on July 11.

Others inquired about the OFCCP’s plan to issue a proposed rule that would amend its sex discrimination guidelines. During the chat, Shiu claimed that the agency’s efforts to update the guidelines “are focused on stating clearly the existing principles applicable to a contractor’s obligation not to discriminate in their employment policies and practices because of sex, and to formally align contractors’ obligations regarding sex discrimination.” When one participant asked why the agency saw a need to revisit the guidelines on sex discrimination, Shiu responded:

The guidance in part 60-20 is more than 30 years old. We need sex discrimination regulations that reflect the current state of the law in this area. Employer policies and practices and the nature and extent of women’s participation in the labor force have also changed significantly since the guidelines were put in place. OFCCP is proposing in this NPRM to create sex discrimination regulations that reflect these changed conditions.

An example of an outdated policy is the guidelines’ provision on pensions. According to Shiu, the existing guidance says that it is not discriminatory for contractors to provide either equal contributions to employee’s pension funds or provide contributions that result in equal benefits upon retirement. In light of an opinion by the Supreme Court, however, which held that it is impermissible to require employees of one sex to make larger contributions than the other in order to receive the same monthly benefits, “the greater cost of providing a pension to members of one sex is not a defense to failing to provide benefits equally to members of both sexes.”

Others inquired about the OFCCP’s plans to issue a proposal that would require federal contractors and subcontractors to conduct more substantive analyses of recruitment and placement of disabled workers and to revise their recordkeeping requirements under Section 503 of the Rehabilitation Act, and another that would “strengthen and enhance the effectiveness of the affirmative action program requirements for federal and federally assisted construction contractors and subcontractors, particularly in the area of recruitment and job training.” Shiu was not able to provide much detail about these proposals as they have not yet been published.

As for compliance guidance, Shiu noted that the OFCCP will publish its updated Federal Contractor Compliance Manual (FCCM) – which serves as a “how to” guide for OFCCP’s compliance officers – sometime in the fall. According to Shiu, the FCCM “should reasonably ensure quality and consistency by creating uniformity in investigative procedures nationwide and providing transparency as to how we conduct compliance evaluations and complaint investigations.” As for compliance investigations themselves, Shiu mentioned that investigations based on individual complaints are twice as likely to result in a finding of violation than those conducted based on the agency’s neutral scheduling process. In response to a question about any recent compliance review trends, Shiu stated that “one trend that OFCCP has observed is that when it identifies major violations, contractors have failed to implement internal, self-audit procedures and failed to implement corrective actions. This has resulted in the agency finding record keeping violations relating to personnel activity and compensation.”

Shiu also answered a number of questions related to various non-regulatory initiatives the OFCCP has instituted in recent months. Notably, in May 2011, the OFCCP announced its intent to revise the forms it uses to collect information in connection with compliance reviews of non-construction supply and service contractors and subcontractors. These changes, if implemented, would substantially impact federal contractors in their record retention practices and in their responses to audit scheduling letters. As discussed during the chat, the agency is in the process of reviewing the comments it has received in response to these proposed changes, and will make any necessary revisions by the end of July. Littler Mendelson submitted its own comments (pdf) to this proposal this week. 

In February, the agency issued a directive outlining the new Active Case Enforcement (ACE) procedures for conducting supply and service compliance evaluations. The agency had issued an earlier directive rescinding its Active Case Management (ACM) procedures. As Shiu explained during the chat:

there are several major differences between [ACE] and [ACM]. Under ACE, OFCCP is using all of the compliance evaluation investigative methodologies specified in the regulations (i.e., compliance review, offsite review of records, compliance check and focused review), whereas under ACM, only the compliance review method was used. Under ACM, a full desk audit was only conducted where there were indicators of discrimination or in every 50th review. ACE procedures require a full desk audit in every compliance evaluation. Additionally, ACM procedures focused on identifying cases where there were 10 or more affected class members, whereas ACE does not have a minimum affected class member threshold.

Other recent OFCCP initiatives include another directive issued last month that updates the application and approval procedures for Functional Affirmative Action Program (FAAP) Agreements. In January, the agency issued guidance for health care providers and insurers to enable them to assess whether they are subject to OFCCP requirements.

Additionally, in response to a question about the agency’s stated goal to help combat worker misclassification, Shiu claimed that it is “an important issue for the OFCCP” and that “as part of the Secretary’s department-wide ‘Plan Prevent and Protect’ initiative, we are working with other DOL agencies on this misclassification issue,” although she provided no specifics.

A transcript of the web chat can be found here.