July 22, 2019

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New OFCCP Initiative to Ensure Contractors Timely Prepare and Update AAPs

As we announced Friday, OFCCP has issued three new Directives in furtherance of its efforts to make the Agency more transparent and efficient.  New Directive 2018-07Affirmative Action Program Verification Initiative,” is aimed at expanding OFCCP’s enforcement reach and was previewed by Acting Director Leen at last month’s ILG National Conference.

 As we like to say, we can’t predict when OFCCP will select a contractor’s establishment for audit, and OFCCP likes it that way because it keeps contractors on their toes in anticipation of an audit.  But, the Agency is "concerned many federal contractors are not fulfilling their legal duty to develop and maintain AAPs" and instead playing the odds they won’t get audited. 

According to the General Accounting Office (“GAO”) in its September 2016 report roughly 85 percent of contractor establishments do not submit a written AAP within 30 days of receiving a scheduling letter.  OFCCP cited this statistic in the Directive to suggest some contractors are not preparing AAPs until OFCCP selects them for audit.  Because, in the words of the Directive, there is “a small likelihood of discovery” if a contractor does not timely prepare AAPs, OFCCP needs to bring additional compliance pressure to bear on these contractors.      

While the Directive is short on details, the initiative “squarely addresses this barrier to achieving comprehensive compliance by establishing a program for verification of compliance by all contractors with AAP obligations.”

 This verification would "initially take the form of OFCCP review of a certification, followed by potential compliance checks, and could later take the form of annual submission of AAPs to OFCCP for review."

 In order to facilitate the possible submission of AAPs, OFCCP will in the coming months be working on, “development of information technology to collect and facilitate review of AAPs provided by federal contractors.”  The Directive notes OFCCP is reviewing “whether there is an existing certification made as part of the procurement process that would be sufficient to allow OFCCP to implement the program without requiring a separate certification directly to OFCCP.”

Will the certification program have teeth?  According to the Directive, yes, because a contractor’s failure to certify compliance will be incorporated into the methodology for neutrally selecting contractors for audit “so that entities that have not developed and maintained AAPs are more likely to be scheduled.”  

 OFCCP says it will flesh out the details as well as “prepare a public outreach and education campaign on this initiative.” 

Jackson Lewis P.C. © 2019


About this Author

Laura Mitchell, Jackson Lewis, Management Representation lawyer, Contractual Drafting Attorney

Laura A. Mitchell is a Principal in the Denver, Colorado, office of Jackson Lewis P.C. She represents management exclusively in all areas of employment law, focusing on affirmative action and government contractor compliance.

Ms. Mitchell is a Principal in the firm’s Affirmative Action and OFCCP Defense practice group, representing government and non-government contractors in Office of Federal Contract Compliance Programs (OFCCP) matters, preparing for and defending OFCCP audits, and counseling employers on issues stemming...

F. Christopher Chrisbens, Jackson Lewis, litigation attorney, employment law, intellectual property legal counsel, OFCCP compliance lawyer
Of Counsel

F. Christopher Chrisbens is Of Counsel in the Denver, Colorado, office of Jackson Lewis P.C. Over his years as a litigation attorney, manager, trainer and workplace investigator, Mr. Chrisbens has developed a diverse array of employment law skills serving employers in a variety of legal and corporate settings.

Mr. Chrisbens began his career as a litigator and appellate practitioner in Los Angeles, California, and later returned to Boulder, Colorado where he was partner in a Boulder firm practicing in the areas of commercial, intellectual property and employment litigation.

Mr. Chrisbens joined Jackson Lewis after many subsequent years as the manager of affirmative action planning and OFCCP compliance in both the law firm and employer association settings. He now counsels, represents, and provides training to federal contractors in all facets of affirmative action planning and OFCCP compliance, including all phases of OFCCP compliance audits. Mr. Chrisbens has successfully and efficiently guided many federal contractors through OFCCP audits, including on-site investigations, compensation scrutiny and applicant tracking analyses. Mr. Chrisbens also provides customized on-site affirmative action and investigations training, and frequently accepts speaking engagements on both topics.