OFCCP Acting Director Craig Leen Comments
By: Erin Schilling
On October 18, 2018, OFCCP Acting Director Craig Leen gave a 2-hour presentation at the National Employment Law Institute’s Affirmative Action Update on “What’s on the OFCCP Director’s Desk”. Acting Director Leen rapidly went through four principles that the OFCCP under his leadership will follow:
The OFCCP has already issued several new directives in an effort to promote transparency in the OFCCP’s compliance audit process. The Transparency Directive (2018-08) is a prime example of this effort. Acting Director Leen pointed out that this Directive applies to pending audits to the extent possible and stated that he has told the entire agency to follow it. He went on to say that he wants to see a more collaborative approach between the OFCCP and the contractor at earlier stages of the audit with both sides treating each other with respect and engaging in good faith discussions to work out disputes.
As a second example, Acting Director Leen covered the Ombud Service Directive (Directive 2018-09). The OFCCP is working to hire an Ombud as a GS 15 level employee either in the national office or in a teleworking role. This individual will report to the Deputy Director. The purpose of this new role is to give contractors a path to address any concerns at any point in the audit. For example, Acting Director Leen stated that a contractor may contact the Ombud to ask if events in an audit are typical and/or are consistent with OFCCP protocols. The Ombud may answer a question directly or may direct the contractor to the appropriate person within the agency. Until the Ombud is hired, contractors should follow chain of command in the agency to address concerns.
Acting Director Leen also pointed to the publishing of the CSAL list Is a further example of transparency. He noted that this was a controversial step, but that he was told by the Solicitor’s Office that every time 3 FOIA requests are received on an item, the OFCCP is required to post it. As long as Acting Director Leen is at the helm, the agency plans to continue to post the CSAL list.
The OFCCP plans to adopt more initiatives in this area, such as expanding the help desk, cleaning up and making OFCCP FAQs more usable and issuing opinion letters similar to the Wage and Hour Division.
The OFCCP wants to set expectations for contractors. Acting Director Leen thinks that if contractors will be held accountable, they should know the stakes. One effort in this area is the new Compensation Directive (Directive 2018-05). The OFCCP remains strongly committed to looking for systemic compensation discrimination. Acting Director Leen shared a few new developments in this area including that the OFCCP plans to look at the intersection between race and gender in compensation. For example, they plan to explore whether minority women have a greater pay gap than all women. He also shared plans to look at compensation for individuals with disabilities.
Other examples of providing certainty to the contractor community include the Religious Exemption Directive (Directive 2018-03), the Tricare Moratorium Extension, and mandatory use of Predetermination Letters when the OFCCP is alleging discrimination.
Acting Director Leen commented that it is abusive to hold contractors in audit for long periods of time. To change this, Leen cited as examples the 45-day desk audit in the Transparency Directive and the AAP Verification Initiative (Directive 2018-07). Under the Verification Initiative, it is Acting Director’s goal that contractors will no longer wait for receipt of a CSAL letter before seeking compliance guidance. The OFCCP is also working with the Government Services Administration (GSA) to gain access to the verifications that federal contractors currently make to GSA about their affirmative action plans when bidding for contracts and is exploring the possibility of auditing contractors that answer “no” on whether they have an affirmative action plan and potentially pursuing contractors who answer “yes”, but cannot timely submit an affirmative action plan in an audit.
He also discussed a planned proposal that would require every contractor to be audited at least once every five years.
Acting Director Leen discussed the Contractor Recognition Program (Directive 2018-06) as an opportunity to recognize federal contractors who excel at compliance. He also mentioned the Excellence in Disability Inclusion Award, which is currently open for public comment and hinted that additional awards are in the works.
Acting Director Leen explained that he has a personal interest in disability inclusion because he has a child with special needs. Contractors should expect some special focus on Section 503 compliance as evidence by the Focused Review Directive (2018-04).
While Acting Director Leen has an ambitious “to do” list in front of him, he has already accomplished a lot during his three-month tenure as Acting Director, as evidenced by the steady stream of Directives issued during that period.