Federal Contractor ‘Bill of Rights’ Promises Collaboration

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By Paige Smith

Federal contractors will have opportunities to provide input on training and other compliance assistance under new guidance from the Office of Federal Contract Compliance Programs.

The OFCCP on Aug. 1 released a set of practical expectations for contractors undergoing an audit. It came in the midst of the annual National Industry Liaison Group conference in Anaheim, Calif.

The document, “What Contractors Can Expect,” stays true to its title by outlining what businesses can anticipate when interacting with the agency, which monitors contractors for adherence to workplace nondiscrimination laws. Under the initiative they will see a response time of three to four business days on inquiries and get feedback on ongoing investigations.

“Contractors can expect to have a reasonable opportunity to discuss issues that may affect the progress or results of their compliance evaluation or complaint investigation,” the document says. “These discussions are most effective if they are first had with the responsible OFCCP compliance officer.”

Pat Shiu, the OFCCP director under President Barack Obama, said that the OFCCP’s manual provides very specific information about the scope of compliance evaluations.

“Many of the issues raised in this ‘Bill of Rights’ are and have been addressed with numerous fact sheets and training sessions provided during the Obama Administration,” Shiu told Bloomberg Law.

“A professionally conducted, lawful and effective compliance investigation does not require that OFCCP provide—before the investigation has been completed—its findings which are issued in a Pre-Determination Notice or Notice of Violation,” she said.

The agency posted the new expectations during Acting Director Craig Leen’s first week on the job, following the resignation of former director Ondray Harris.

The guidelines were requested during town hall meetings, held to get public feedback on compliance assistance. They were the first town hall-style meetings the agency hosted since 2011.

Expectations New; Complaints Not So Much

The concept of formal expectations are new and welcomed, former OFCCP senior official John Fox said.

“This is just the latest incarnation of a lot of pressures that have always been there,” Fox told Bloomberg Law. Contractors “need predictability, they need to know where they stand.” Fox is with Fox, Wang & Morgan P.C. in Los Gatos, Calif.

Timeliness is a cornerstone of the Bill of Rights because many contractors are frustrated with the backlog of audits, he said. Leen addressed this backlog in an Aug. 1 speech at the ILG conference, when he proposed a 45-day timeline for the desk audit portion of the process.

A practitioner with Roffman Horvitz in McLean, Va., agrees that the expectations would benefit the contractor community.

“I think contractors will welcome a restored sense of balance to their interactions with OFCCP,” Alissa Horvitz told Bloomberg Law.

The OFCCP had a tense relationship with contractors during the Obama administration, Horvitz said. “Even reasonable requests for transparency would be refused.”

Institute for Workplace Equality co-chair Mickey Silberman is optimistic about the guidelines but apprehensive about their substantive reach. The institute is an employer association based in Washington, D.C.

“The open and the one most important question is will this result in a change to the too-often aggressive tactics of the agency’s field offices in conducting audits across the country?” he told Bloomberg Law. Silberman is a shareholder with Fortney & Scott, LLC, and chair of its Affirmative Action & Pay Equity Practice Group.

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