Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Last summer, OFCCP put contractors on notice that it was preparing to implement focused reviews of contractors’ compliance with Executive Order 11246, Section 503 of the Rehabilitation Act of 1973, and the Vietnam Era Veterans’ Readjustment Act of 1974 (VEVRAA) when it issued Directive 2018-04.1 On March 8, 2019, the OFCCP issued its much-anticipated Frequently Asked Questions (FAQs) to address what contractors can expect during a Section 503 focused review.
Under the FAQs, OFCCP makes clear that Section 503 focused reviews will include an onsite investigation and interviews with managers responsible for equal employment opportunity and Section 503 compliance (such as an ADA coordinator) as well as employees affected by those policies. OFCCP also indicates that the first round of Section 503 focused reviews will take place at contractors’ corporate headquarters locations.
The FAQs also address a couple of open questions from OFCCP’s original directive. Specifically, OFCCP makes clear that while it will request a copy of the Executive Order 11246 Affirmative Action Plan (EO AAP),2 it will not conduct a review of the EO AAP during a Section 503 focused review. According to the FAQs, OFCCP will instead use the EO AAP to get a picture of the contractor’s organization, confirm job groups, and understand how Section 503 compliance strategies fit with the contractor’s other affirmative action efforts. Importantly, OFCCP will not analyze the data contained in the EO AAP to look for discrimination on sex or race and ethnicity.
Additionally, the FAQs clarify that OFCCP will not require the submission of personnel activity data other than that prescribed in 41 CFR § 60-741.44(k), which includes:
- The number of applicants who self-identified as individuals with disabilities;
- The total number of job openings and total number of jobs filled;
- The total number of applicants for all jobs;
- The number of applicants with disabilities hired; and
- The total number of applicants hired.
The FAQs do, however, make clear that OFCCP may request compensation, promotion, and applicant flow data for individuals with disabilities during a Section 503 Focused Review.
As this type of review is likely new for most contractors, we encourage you to attend our upcoming complimentary webinar on March 20, 2019, where we will discuss how to prepare for a Section 503 focused review.3
1 See Lance Gibbons and David Goldstein, OFCCP Focused Reviews Coming in FY 2019, Littler ASAP (Aug. 14, 2018).
2 OFCCP Focused Review Scheduling Letter, available at https://www.dol.gov/ofccp/Section503-FocusedReviews/files/OMBApproved%20Section503FocusedReviewSchedulingLetterFEDQA508c.pdf.
3 For more information on this webinar, Preparing for an Increase in OFCCP Audit Activity: CSALs, Focused Reviews, VERPs, and More, click here: https://www.littler.com/events/preparing-increase-ofccp-audit-activity-csals-focused-reviews-verps-and-more.