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Monday, September 24, 2018

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Quick Hit: OFCCP has issued Directive 2018-08 (the “Directive”) which sets alternating new behavior and procedures for OFCCP acquiescence evaluations. The Directive contains abundant specific rules and procedures that acquiescence admiral charge chase at every appearance of a acquiescence evaluation.

Key Takeaways:

The Directive provides contractors a bigger faculty of what they can apprehend during a acquiescence evaluation. The rules independent in the Directive can be cited to during a acquiescence appraisal if (or when) acquiescence admiral abort to accept by them. If your business is currently beneath a acquiescence evaluation, assay the Directive and accomplish abiding your acquiescence administrator is afterward its requirements. It may booty some time afore acquiescence admiral are accustomed with all of the Directive’s details.

The Directive reinforces the comments included in Directive 2018-07 that OFCCP expects contractors to accept able their Affirmative Action Programs (“AAPs”) on time and be able to aftermath them to OFCCP aural 30 canicule of cancellation of a Scheduling Letter. The Directive makes bright that contractors should not apprehend to accept extensions of time on this borderline and should apprehend OFCCP to promptly affair appearance account notices aback this borderline is missed. In added words: Accomplish Abiding You Prepare Your AAPs Annually!

Contractors beneath assay should apprehend added accuracy from OFCCP. For example, acquiescence admiral charge now accommodate specific explanations about what indicators of bigotry accept prompted an onsite inspection, and allotment capacity basal any Notice of Abuse during the abatement action – including corruption assay capacity acknowledging a pay bigotry finding.

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If the Directive is followed, contractors beneath assay should apprehend to accept approved communications from their OFCCP acquiescence officer. The Directive requires acquiescence admiral to acquaint with contractors aural 15 canicule of the arising of the Scheduling Letter, afterwards accepting the contractor’s AAP and acknowledging affidavit in acknowledgment to the scheduling letter (ideally aural 5 days), and consistently thereafter (“ideally at atomic already every 30 days).

OFCCP appears to be alert to the architect community. Many of the accoutrement in the Directive acknowledge to apropos aloft by contractors for years. That actuality said, the Directive contains jerk allowance for acquiescence officers, so the admeasurement to which the Directive provides contractors with added accuracy and adequation during onsite evaluations charcoal to be seen. That actuality said, if followed, the Directive contains abundant accoutrement (as abundant below) that should beforehand the acquiescence appraisal experience.

More Detail: On September 19, 2018, OFCCP issued Directive 2018-08 (the “Directive”). The Directive’s declared purpose is “[t]o ensure accuracy in all stages of OFCCP acquiescence activities to advice contractors accede with their obligations and apperceive what to apprehend during a acquiescence evaluation, and to assure workers from bigotry through the constant administration of OFCCP acknowledged authorities.” This is the latest in a cord of measures taken by OFCCP to beforehand its accuracy – a above shortcoming articular by contractors during OFCCP’s 2017 Town Hall Meetings and an action included in OFCCP’s Town Hall Action Plan.

OFCCP states that the Directive “extends OFCCP’s accuracy action to every date of a acquiescence appraisal to facilitate bendability of operations, beforehand efficiency, and boldness collaboratively affairs during acquiescence evaluations.” To accent that point, the Directive states that “Transparency should adviser OFCCP agents during every date of a acquiescence evaluation, from alpha to end.” To that end, the Directive sets alternating abundant new behavior and procedures that either analyze ambiguities or ample in gaps in the Federal Contract Acquiescence Manual (“FCCM”) – the capital ability aloft which contractors await to accept the procedures applicative to acquiescence evaluations. The Directive makes bright that it especially “supersede[s] any procedures in the FCCM or added ahead issued advice to the admeasurement they could be apprehend to conflict.” It additionally especially states that “OFCCP agents charge follow” the new behavior and procedures.

Some of the key accoutrement of the Directive include:

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30 Day Extensions Accessible – But ONLY For Acknowledging Data. The Scheduling Letter that commences a acquiescence appraisal provides a 30 day aeon in which to accommodate the requested AAP and acknowledging data. The Directive provides that contractors may accept a 30 day addendum on the borderline for accouterment acknowledging data, provided that: (1) the appeal is fabricated aural 30 canicule of accepting the Scheduling Letter, and (2) the architect appropriate submits its AAPs aural the antecedent 30-day period. The Directive makes bright that extensions of time to abide AAPs will rarely be granted. Failure to accommodated deadlines for appointment AAPs and/or acknowledging abstracts will aftereffect in the “immediate” arising of a Notice to Appearance Account why OFCCP should not admit administration proceedings, accouterment contractors an added 30 day aeon in which to accommodate the information. These Appearance Account Notices will not crave approval from OFCCP’s National Office.

Initial Acquaintance by Acquiescence Administrator Afterwards Arising of Scheduling Letter. Within 15 canicule afterwards a Scheduling Letter is issued, the acquiescence administrator will acquaintance the architect to: (1) authorize the acquiescence administrator as the primary point of contact; (2) accommodate an overview of the acquiescence appraisal process; (3) action acquiescence assistance; (4) explain the accessible 30 day addendum on the borderline to accommodate acknowledging data; and (5) the Notice to Appearance Account action if the architect cannot accommodated deadlines for appointment its AAP and acknowledging data.

Time to Address Issues with Antecedent Submissions. The Directive requires acquiescence admiral to acquaint contractors promptly of any deficiencies in the AAPs and acknowledging abstracts submitted in acknowledgment to the Scheduling Letter, and accommodate “15 canicule to accommodate complete and adequate submissions.” Many contractors complained about the abbreviate timelines provided by some acquiescence officers. Now contractors can apprehend at atomic 2 weeks to acknowledge to issues with their antecedent submissions.

No Fishing Expeditions During the Board Assay Appearance and Parameters On Added Abstracts Requests. The Directive makes bright that during the board assay date of a acquiescence evaluation, any chase up requests by acquiescence admiral charge be bound to the abstracts requested by the Scheduling Letter. If the amount progresses above the board assay phase, requests for advice may go above that requested in the Scheduling Letter, but should be aimed at “refin[ing] indicators and prepar[ing] for a abeyant onsite visit.” Moreover, contractors charge be abreast why the advice is actuality requested, and the requests charge be “reasonably tailored to the areas of concern, and acquiesce a reasonable time to respond.”

Contractors Charge Be Told Why OFCCP Is Coming Onsite. Onsite acceptance belletrist charge “[i]nclude a high-level arbitrary of any basic indicators of discrimination.” With this requirement, contractors should no best face the anticipation of an onsite assay after alive what OFCCP is investigating. The sample onsite acceptance letter absorbed to the Directive indicates that OFCCP charge accommodate specific capacity about the break of bigotry arch to the onsite. Specifically, the sample explanations in the anatomy letter beforehand that OFCCP charge acknowledge the blazon of abuse and the job accumulation at issue: “(1) (e.g., hiring practices in the Technician I job group); and (2) (e.g., advantage behavior and practices with account to women in the afterward pay assay groups).” That actuality said, OFCCP makes bright that the declared affidavit for its onsite assay do not absolute the ambit of its review, as it states in the sample onsite acceptance letter: “identification of these basic indicators does not absolute the ambit of OFCCP’s ascendancy to affirm acquiescence with added requirements or investigate added abeyant violations that it discovers during the beforehand of this acquiescence review.”

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Quick Closure of Most Acquiescence Evaluations. The Directive contemplates that for “the majority of cases” area the board assay assay reveals no indicators of bigotry or affirmation of added violations, acquiescence evaluations should be bankrupt aural 45 canicule of cancellation of the contractor’s AAPs and acknowledging data.

Sharing Advice in Abatement Phase. The Directive anticipates a “collaborative approach” amid OFCCP and contractors during the abatement phase, including accouterment by OFCCP of “information and capital antecedent data.” This includes acceptable advice “to abetment the architect in compassionate and replicating OFCCP’s findings, administration factors acclimated to account aback pay, [and] accouterment an overview or arbitrary of anecdotal affirmation or non–statistical allegation to add ambience to the statistical results.”

Next Business Day Rule. The Directive includes a aphorism (contained in comment 5) that if assertive deadlines abatement on a weekend or holiday, the Architect has until the abutting business day to respond. Although this seems like a accessory enhancement, it relieves contractors of the charge to either ask for permission to extend a weekend or anniversary borderline or acknowledge in beforehand of the deadline.

© 2018 Proskauer Rose LLP.

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