Thursday, December 14, 2017

New OFCCP director inherits a criticized agency

If you are a federal contractor or subcontractor, the letters O-F-C-C-P hold real meaning for you. They stand for Office of Federal Contract Compliance Programs. It is the federal agency which ensures that employers doing business with the federal government (i.e., those holding federal contracts and subcontracts) comply with federal laws and regulations requiring nondiscrimination in employment, including their affirmative action obligations.

Yesterday, the OFCCP named Ondray T. Harris as its new Director.

He inherits an agency under fire by business groups. Earlier this year, the U.S. Chamber of Commerce published a white paper entitled, Office of Federal Contract Compliance Programs: Right Mission, Wrong Tactics [pdf].

The report commends the OFCCP for its charged goal of increasing employment opportunities for minorities, women, the disabled, and veterans, but questions its recent tactics used to move covered employers towards that goal.
OFCCP has become an agency that appears to focus more on garnering splashy headlines and securing high-dollar settlements than it does simply pursuing its admirable, if at times, unglamorous mission. As this white paper demonstrates, OFCCP is too often antagonistic toward the regulated community, ignores the myriad and effective diversity efforts undertaken by contractors, engages in overly broad and unreasonable fishing expeditions for employment data, and pursues take it or leave it conciliation efforts. It is no stretch to say that many of these tactics have employers questioning whether they want to perform work for the federal government. …

OFCCP’s power to debar or disqualify contractors from future federal contract opportunities dramatically underscores the relationship the Agency has with the regulated community. Facing the threat of debarment, federal contractors are understandably reluctant to challenge OFCCP’s unreasonable document requests, overreaching investigations, or even allegations of discrimination.

The OFFCP’s tactics, with which the Chamber takes issue, include:

  • Demanding that an employer provide enormous amounts of data in a short time frame, rather than working with the employer to narrow the request to focus on data relating to a specific issue.
  • Informing a contractor that it was welcome to bring a matter before an administrative law judge, “but the judge works for us.”
  • Telling employers “we can ask for anything we want.”
  • Unilaterally setting dates and times for on-site investigations without an invitation to discuss legal issues or trying to work with the employer’s schedule. 
  • Discouraging employees from bringing HR personnel to their interviews during on-site investigations. 
  • Insisting that nonmanagerial employees review and sign the OFCCP-generated interview statement at the end of the interview without giving them time to review the statement carefully. 
  • Demanding to meet with a contractor’s information technology professional to scour through company emails “on the system,” without any regard to privacy, propriety concerns, or relevancy.
  • Making an unwavering demand to meet with a contractor’s CEO, who does not have detailed legal knowledge of the company’s hiring and compensation practices.

Some of the Chamber's recommended business friendly changes include:

  • Returning to a more neutral enforcement agency approach that encourages OFCCP investigators and contractors to work together to understand and resolve issues during all phases of audits. 
  • Encouraging comprehensive and holistic evaluations of contractors’ affirmative action and nondiscrimination efforts as opposed to overemphasizing statistical analyses. 
  • Implementing guidance/regulations to set clear parameters on OFCCP investigations with consistent application across regional and district offices nationwide. 
  • Examineing ways to minimize the compliance burden on small businesses without sacrificing OFCCP’s overall goals. 

One can assume that a Trump-appointed OFCCP Director will, over time, prove to be more business friendly and move the agency in a more business friendly direction. Time will tell if he moves in this direction, and how many of these recommendations he ultimately adopts.