Expect More Scrutiny of Affirmative Action Programs

Allen Smith, J.D. By Allen Smith, J.D. September 12, 2021
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Expect More Scrutiny of Affirmative Action Programs

Beth Ronnenburg, SHRM-SCP, president of Berkshire Associates in Columbia, Md., speaks at the SHRM Annual Conference & Expo 2021.

​LAS VEGAS — The Office of Federal Contract Compliance Programs (OFCCP) is ramping up its enforcement of federal contractors' affirmative action programs.

"Now more than ever, timely prepare affirmative action plans," said Beth Ronnenburg, SHRM-SCP, president of Berkshire Associates in Columbia, Md., on Sept. 11 at the SHRM Annual Conference & Expo 2021.

Speaking at a concurrent session called "A Year of Change: What Federal Contractors Can Expect from OFCCP in 2021," Ronnenburg highlighted OFCCP Director Jenny Yang's priorities, what she's already accomplished, directives she may target and the agency's so-called affirmative action verification interface.

Yang's Priorities

Ronnenburg said Yang's priorities are to:

  • Rebuild OFCCP staff. The agency's staff has shrunk in recent years due to austerity budgets and retirements. Under the Biden administration, the agency will get more money for compliance officer roles—$200 million has been proposed for 400 staff positions. There will be a delayed effect as it will take time to train the new hires, Ronnenburg noted.
  • Revitalize the construction contractor program. Ronnenburg said this program has fallen by the wayside but Yang believes there are compliance issues to investigate.
  • Streamline and modernize processes. OFCCP regulations are due for an overhaul, Ronnenburg said. For example, they don't reference remote work and don't reflect how work has changed following the height of the pandemic.

Yang also has reaffirmed a commitment to functional affirmative action plans. These are typically used by larger organizations, where the affirmative action plans are organized by function instead of physical establishment.

In addition, Yang wants to focus on systemic issues as employees return to worksites, especially on how the pandemic has affected women and people of color.

Eliminated Initiatives

Yang already has eliminated two initiatives from the prior administration.

Focused reviews have been eliminated. These had focused on compliance for individuals with disabilities, as well as protected veterans, physical and religious accommodations, and promotions.

Secondly, she's eliminated compliance checks. These weren't full-blown audits but rather high-level reviews without the OFCCP noting whether the contractor was in compliance.

Focused reviews and compliance checks were unpopular with OFCCP compliance officers, who said they were too much work. Focused reviews required an onsite visit or, during the pandemic, at least employee interviews, which also were unpopular with federal contractors, Ronnenburg said.

The removal of these initiatives will allow compliance officers to focus on typical compliance reviews.

The OFCCP focuses its compliance efforts on failure to hire, particularly for entry-level jobs, as well as compensation discrimination, she added.

Directives in the Crosshairs

Ronnenburg also noted various Trump administration directives that the Biden administration might scrap.

These initiatives include:

  • Transparency directive.
  • Compensation directive.
  • Early resolutions procedures directive.

"I'm hopeful they'll stay. They're helpful for contractors," she said. But she noted that, unlike regulations, directives can easily be rescinded. Final regulations must go through notice and a public comment period to be revoked.

Affirmative Action Verification Interface

The affirmative action verification interface started under the Trump administration and is continuing. It was approved last month as a tool to require federal contractors to register and certify compliance. It also is a data transfer tool when audits are due, providing a portal through which information is uploaded.

The OFCCP has not yet indicated when the portal will be launched. Once it opens, contractors will have 90 days to certify compliance with their affirmative action programs.

Since it takes much time to put affirmative action plans together and many plans target completion in January, contractors may be scrambling if the portal launches in January.

The affirmative action program, not just the plan, is certified by the OFCCP, Ronnenburg said.

The certification has three options:

  • The affirmative action program has been developed and maintained.
  • The program hasn't been developed. Ronnenburg noted that contractors won't want to choose this option.
  • The program has not been developed within 120 days because the entity just became a federal contractor—a choice that will rarely be selected, she said.

Takeaways

As federal contractors develop affirmative action plans in the new plan year, Ronnenburg recommended they:

  • Consider functional plans if they are large organizations.
  • Re-examine accessibility as employees return to the office.
  • Conduct proactive pay analysis. She added that pay data collection is likely returning, possibly by the OFCCP before the Equal Employment Opportunity Commission.
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