OFCCP’s Town Hall Action Plan: A Response to Contractors’ Concerns or the U.S. Chamber’s Hard-Hitting Report?

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On May 1, 2018, the Office of Federal Contract Compliance Programs issued a Town Hall Action Plan (the "Plan"). The OFCCP's announcement regarding the Plan describes it as the result of participant feedback and insight provided during three Compliance Assistance Town Halls held in 2017. The Plan states that such feedback and insight "resulted in the identification of three general areas of focus: training, communication, and trust," which the OFCCP plans to achieve via three initiatives:
 
  1. Review and enhance contractor compliance assistance materials;

  2. Assess and improve the quality of contractor and compliance officer training and education; and

  3. Increase transparency and communication with agency stakeholders.
For each of the initiatives, the OFCCP outlined an Action Plan and described initiative-specific efforts it intends to take towards achieving "meaningful change" in the areas of training, communication, and trust. The OFCCP's Summary of Deliverables, a "non-exhaustive list of OFCCP's proposed deliverables" to achieve each initiative and with which the announcement closes, basically repeats in a tightly worded bullet-point list the same efforts described in the Action Plan.

While we are hopeful that the OFCCP has taken a proactive step to respond to contractor concerns, we remain speculative that the 2017 town halls were the sole impetus for the Plan. To that end, this overview analyzes other factors that may have prompted the Plan, as well as what the Plan may mean —realistically — for contractors.

The GAO's September 2016 Report

The OFCCP's website plainly states that the three town hall sessions held at the end of FY 2017 were "in response to the Government Accounting Office's September 2016 Report: Strengthening Oversight Could Improve Federal Contractor Nondiscrimination Compliance." As part of assessing the OFCCP's enforcement and compliance assistance activities, the GAO spoke with representatives from fourteen national employer organizations representing the interests of contractors, thirteen civil rights advocates and organizations representing protected groups, and twenty-four contractors – four in each of OFCCP's six regions. Armed with stakeholder feedback, the GAO's opening letter to the report pointedly states, "stakeholders, including some in the federal contracting community, are concerned OFCCP's efforts are imposing excessive compliance burdens on contractors, including what they perceive as overly broad and unnecessary document and data results, as well as unreasonably numerous and lengthy compliance evaluations."

The GAO report concludes by noting that the OFCCP has used enforcement as its "predominant approach" to achieve its mission and suggests that outreach, compliance assistance, and guidance is lacking and, as a result, the OFCCP may be missing a critical opportunity to influence. The GAO then recommended actions for the OFCCP to take, including: provide training for new staff and continuing training for compliance officers, identify ways to improve information provided to federal contractors, and assess existing contractor guidance to ensure contractors have helpful information. Sound familiar?

The OFCCP's September 2017 Town Halls

Exactly one year after the GAO published their critical report regarding the OFCCP's subpar enforcement and compliance assistance activities, and just days shy of the end of the OFCCP's 2017 fiscal year, the OFCCP held three town halls: September 19 (Washington, DC), September 26 (San Francisco, CA), and September 28 (Chicago, IL). The town hall invitation broadly targeted the contractor community, stating that the purpose of the town hall meetings was to gather contractor input and identify opportunities for enhancing OFCCP's compliance assistance. The meetings were open to the public, but would "be of particular interest to human resource managers, equal employment opportunity specialists, chief compliance officers, and other personnel who are directly involved with ensuring their company's compliance with OFCCP's requirements."
 The facilitator encouraged participants to…help the OFCCP develop tools and resources that educate contractors about their compliance requirements and that help bring them into compliance.
A professional facilitator associated with Giuffrida Associates, a GSA contractor themselves, facilitated each town hall. According to the OFCCP's Compliance Assistance Town Hall Executive Summary, the facilitator solicited ideas for making OFCCP's existing compliance assistance more practical and new ways to be more collaborative. The facilitator encouraged participants to provide specific feedback and suggestions to help the OFCCP develop tools and resources that educate contractors about their compliance requirements and that help bring them into compliance. The facilitator's process seems like a sincere attempt at a "help us, help you" approach. Well, timing is everything.

The Chamber's September 2017 Report

In the words of American baseball legend Yogi Berra, "You don't have to swing hard to hit a home run. If you got the timing, it'll go."

Two days after the OFCCP's first town hall in Washington, DC, the U.S. Chamber of Commerce released a harsh critique of the OFCCP. The three-part Report, entitled "Office of Federal Contract Compliance Programs: Right Mission, Wrong Tactics," explored the history of the OFCCP, provided an insider's view of what it is like to be a contractor under an OFCCP audit, and recommended specific actions the OFCCP should take to improve its enforcement efforts and relationship with the contractor community.

The Chamber began its Report with this unforgiving description of the Agency:
 
  • OFCCP has become an agency that appears to focus more on garnering splashy headlines and securing high-dollar settlements than it does simply pursuing its admirable, if at times, unglamorous mission. As this white paper demonstrates, OFCCP is too often antagonistic toward the regulated community, ignores the myriad and effective diversity efforts undertaken by contractors, engages in overly broad and unreasonable fishing expeditions for employment data, and pursues take it or leave it conciliation efforts.
Among the Chamber's findings, the Report stated:
 
  • OFCCP seems to have abdicated supervision of the regional and district offices. There is little consistency between audits with respect to focus, production demands on contractors, and required remedial actions.
  • OFCCP has shifted to acting like a mini-plaintiff's law firm focused solely on issuing findings of discrimination and not on partnering with the contracting community.
  • It now seems that the Agency views cooperation and conciliation as concepts to be avoided.
  • The partnership between OFCCP and the contracting community has been replaced by Agency refusals to disclose, much less discuss constructively, any preliminary findings during the compliance evaluation process.
The Chamber's final stinging comment in its summary of the findings relates back to the GAO's September 2016 report: "Symptomatic of OFCCP's abandonment of its original mission was its overt decision to abandon wholesale its ‘compliance assistance activities.'"

The Chamber outlined three important steps for the OFCCP "going forward," which practicably applied, require the Agency to take three major steps away from current practices:
 
  • (1) discontinue the "opaque, and at times, openly hostile approach" and return to its "mandated neutral enforcement role;"

  • (2) return to "a more holistic assessment" of contractors' efforts; and

  • (3) retreat from the Agency's current "numbers-based game of gotcha."
The Chamber then presented more granular level "commonsense recommendations." In sum, the Chamber's Report, with ink practically still wet before the first of three town halls wrapped and on the precipice of a new administration, set out a recommended action plan with overarching themes of consistency and transparency.

The Town Hall Action Plan May Be Based More on the Chamber Report than the Town Halls

Town hall participants may have provided anecdotal-based ideas for making the OFCCP's existing, although arguably abandoned, compliance assistance more practical and collaborative. However, it seems more likely that the OFCCP's Town Hall Action Plan responds directly to the Chamber's Report.

Case in point:
 
  1. The Chamber recommended that the OFCCP revise regulatory guidance documents to make them consistent, enable more transparency during investigations, and provide greater clarity regarding OFCCP's jurisdictional reach.
     
    • Under its initiative to "review and enhance contractor compliance assistance," the Plan proposes updating and replacing several outdated contractor guidance documents and developing or redesigning "contractor compliance assistance materials" to educate contractors "about their obligations" and help contractors "implement their obligations under the laws OFCCP enforces."

      Additionally, to "increase transparency and communication," the Plan says that the OFCCP will: (1) create a "roadmap," a written guide for contractors to "improve transparency in the OFCCP's work;" (2) develop policy guidance concerning violation indicators, OFCCP supplemental data requests, and compensation self-assessments; and (3) craft a "Bill of Rights" styled document that will outline what contractors can expect "during an engagement with OFCCP."

  2. The Chamber recommended that the OFCCP implement guidance or regulations to set clear parameters on OFCCP investigations and breed consistent practices across all offices.
     
    • The Plan states that "to achieve consistency across regional and district offices" and increase transparency, the OFCCP instituted a "uniform approach to the use of Predetermination Notices (PDN) in compliance evaluations," providing an opportunity for contractors to respond to preliminary findings during an investigation.

      The Plan dedicates one of three initiatives to assessing and improving the quality of contractor and compliance officer training and education. The Plan specifically proposes national standardized training that will address a skills gap, adopt a competency model for all compliance officers, and as a result, provide consistency across regional and district offices nationwide.

  3. The Chamber suggested that the OFCCP "reengage" with contractors.
     
    • The Plan considers reviving an ombudsman program "to address communication and trust issues" between the OFCCP and the contractor community. The Plan also proposes creating a recognition program to publicly recognize "one or more sound and successful" contractors, "as models for other contractors."
As shown, the OFCCP's Town Hall Action Plan directly responds to many of the Chamber Report's hardest-hitting comments. It is doubtful that the Chamber's harsh critique was not top-of-mind for the OFCCP and its town hall facilitator. Fortunately, if a relationship between the Chamber's Report and the Plan exists, that may increase the likelihood that the OFCCP will prioritize the Plan's "non-exhaustive" list of proposed deliverables.

Conclusion – What Does This Mean for Contractors?

The OFCCP's 2019 budget justification requested a 12% budget decrease and a 14% headcount reduction for FY 2019. Although it appears the agency is proposing a "do more with less" approach, the details of the request also suggest that the OFCCP will focus on some of the priorities that respond to the Chamber's recommendations and that are proposed by the Town Hall Action Plan. Such as:
 
  • Attain third-party accreditation for its contractor and compliance officer training programs.
  • Invest and implement software and licenses for a 1-800 help desk and customer relations management system.
  • Develop a contractor recognition program to recognize contractors for best or model overall compliance programs, best program for disability employment practices under Section 503, and best program for veterans under VEVRAA. Recipients will be granted a one-time exemption from compliance reviews, for up to five years.
  • Launch the contractor online Community of Practice – an online community where contractors come together to learn, share, and collaborate.
This is not necessarily the final budget that Congress will approve, but it provides some hope and evidence that the OFCCP is open to feedback and seriously considering some of the pragmatic and practical suggestions recommended by the U.S. Chamber and contractor constituents. However, until the OFCCP implements any actual "meaningful change," contractors should continue to ask questions, push back when necessary, and be open-minded about the idea of collaborating with the OFCCP if it appears it is trying to engage and be transparent.