Algorithm of the OFCCP Enforcement Trend – Part 3 of 3

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Part 2 of 3 of this series examined and compared the OFCCP enforcement activities under the Clinton, Bush (Jr.) and Obama administrations to gain more insight on what to anticipate of the current OFCCP. Since people propel the activity in question, this installment will focus on Director Shiu’s most recent Regional Director appointees to gain further insight as to what to expect going forward.

First, let’s have a “crash course” in the OFCCP’s regional makeup. The OFCCP has six regions: the Northeast, the Mid-Atlantic, the Midwest, the Southeast, the Southwest and Rocky Mountain Region (SWARM) and the Pacific Region. Of the six Regional Directors, Shiu has appointed three: Bradley Anderson, Director, Midwest Region; Diana Sen, Director, Northeastern Region, and, most recently, Janette Wipper, Director, Pacific Region. Two of these three appointees, Diana Sen, and Janette Wipper, were high-powered civil rights attorneys who came from outside the OFCCP. What can these appointees tell us about the likely direction of the OFCCP?

Bradley Anderson heads the office for the largest OFCCP region, the Midwest, which is comprised of 10 states and 148 employees. His practices and those of his staff therefore impact a significant portion of OFCCP enforcement activity and federal contractors. A sixteen-year veteran, Mr. Anderson has spent most of his career with the OFCCP, starting in 1995 as a Compliance Officer in Indianapolis, rising through the ranks by working in two regions and three districts, including Director of the Charlotte District Office in North Carolina. Mr. Anderson has been instrumental in executing the first uniform, national investigatory training for Compliance Officers, which has trained over 350 new C.O.’s. Director Shiu’s choice of him as Director of this region certainly underscores both her stated and implied intentions to step up enforcement. If anything, contractors can therefore expect compliance reviews to increase and intensify.

In 2012, Mr. Anderson spoke at the St. Louis Industry Group Meeting and shared “The Top 10 Opportunities for Contractors for Keeping the OFCCP at Bay”. The first five he categorized as “Commit to”, and the Second set, he characterized as “Musts”. The “Musts” are perhaps more instructive (and of more immediate concern). They are: 1) Implement appropriate selection processes; 2) Create, implement, monitor and reassess Affirmative Action Programs; 3) Understand Reasonable Accommodation Concept; 4) Maintain accurate and complete personnel records; 5) Seek technical assistance from the OFCCP.

As for the first “must”, Mr. Anderson has pointed out that the OFCCP’s focus over the last several years has been recruitment and outreach. This is consistent with at least some aspects of the OFCCP’s newest rules relating to VEVRAA and Section 503, which contain benchmarks or “aspirational” goals as to hiring percentages. In fact, over 50% of violations cited by the OFCCP in 2011 and 2012 have been based on recruitment and outreach. Director Shiu herself told Bloomberg in an interview in January that regarding these new rules, both she and her staff will be focusing on the following questions:
“What systems do they have in place?… What policies do they have in place? What have they been currently doing in terms of effective outreach and recruitment and retention? Do they have data on that? Because that’s obviously essential for what they need to improve.”
Mr. Anderson has echoed these words. Contractors would therefore do well to make the above points their priority. In particular contractors should make sure to document all recruitment and outreach efforts.

Diana Sen took over the Northeastern Regional Office last year. Ms. Sen is most noteworthy for her dedication to protecting the rights of the Latino population and her stated commitment to doing everything she can to promote diversity in the workplace, a goal that is very much at the top of Director Shiu’s agenda. Ms. Sen’s appointment, at a minimum, reinforces Mr. Anderson’s message as to posting, outreach and recruitment.

Janette Wipper is Director Shiu’s newest appointee and replaces Bill Smitherman, (appointed under the Bush (Jr.) Administration) as the Director of the Pacific Regional Office. Ms. Wipper is a high-powered class action employment law litigator. Her areas of emphasis and commitment are remedying gender discrimination, misclassification and wage theft, in addition to an impressive expertise in the use of statistical evidence and experts in class action litigation. While Ms. Wipper’s appointment also reinforces the OFCCP’s commitment to outreach and recruitment (thus emphasizing the Action in Affirmative Action) it also reflects Director Shiu’s commitment to gender equality and pay equity. In other words, when Director Shiu says she intends to remedy gender discrimination and promote pay equity, and that contractors can expect “rigorous analysis” of their compensation systems during compliance evaluations she means it!

While each of these appointees may be heading up a particular regional office, contractors need to consider the likelihood that regional directors will work together to help each other. For example, Ms. Wipper will probably share her expertise in dealing with statistical evidence, gender discrimination and pay equity issues with other OFCCP regional directors. Similarly, Diana Sen’s extensive background in and zealous representation of Latino workers will likely be a resource for the rest of the OFCCP in promoting Director Shiu’s objectives of attaining diversity in the workplace in general and ensuring that the Latino community in particular is well-represented. All the regions will also benefit from Mr. Anderson’s 16 years of experience with the OFCCP, as well as the knowledge and experience that the other three Regional Directors bring with them.

Last but not least, is Director Shiu herself. Her three “big picture” goals as she stated in last year’s National Industry Liaison Group Conference are:
  1. Strengthening the OFCCP’s enforcement activities; in her words this “has been my number one priority in this job”. We can see from the increased audits and the agenda from 2014 that this is indeed the case;

  2. Attaining voluntary compliance.

  3. Promoting a diverse workplace. Ms. Shiu’s own words on this point are very instructive for contractors:

    “Building a diverse workforce is critical to success in the 21st century. That is as true for me as it is for you. At OFCCP, 60 percent of our employees are women. More than half are people of color. Among our senior executive service leaders, 70 percent are women and 70 percent of those women are women of color. People with disabilities comprise 22 percent of our workforce. One out of every four OFCCP employees is a veteran, and nearly one-third of those veterans are women.

    This didn’t happen by accident. It happened because we made diversity a priority. We set goals for ourselves, and we met them. We took steps to distribute our job postings to wide networks, including partners in various community-based organizations. We built relationships with stakeholders to identify qualified candidates for positions in our agency. And we communicated a set of expectations to all directors in the agency that diversity in hiring was a performance measure on which they should be evaluated…

    That is how we raised the game”.

    From Address to the NILG July 31, 2013
What is the subtext here? While Ms. Shiu has heard concerns about the feasibility of complying with new VEVRAA and Section 503 rules, she seems to strongly believe it can be done. If the OFCCP can do it, then, Shiu reasons, so can federal contractors. Contractors therefore should be proactive in widening its job posting networks and looking to partner with community-based organizations and should consider making diversity a performance goal for its managers. Director Shiu herself in more than one speech has exhorted the federal contractor community to avail itself of all the OFCCP has to offer in assisting with compliance:
“Use that assistance. It’s free. It’s part of our mission to help you succeed. And as I have said again, there is absolutely, positively no retaliation for any company that comes to us seeking help with compliance. Just don’t wait until we come knocking to ask for help”.
The message seems clear. Contractors need to review their existing practices with respect to outreach, recruitment and compensation systems. Contractors need to ensure compliance with the new rules, and, if you are unsure how to comply, you should reach out to the OFCCP or your current AAP expert for help before you get a scheduling letter.

For more information contact Ahmed Younies at (714) 426-2916, x. 1 or ayounies@hrunlimitedinc.com.