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NILG Overview Series: OFCCP's Strengthening Enforcement for Marginalized People

By Debra Milstein Gardner - Aug 15, 2023 4:03:20 PM - 5 MINS READ

The OFCCP’s major priorities were showcased at the recent National Industry Liaison Group (NILG) conference in Phoenix. Acting Director Michelle Hodge identified the agency’s policies and initiatives to protect the rights and well-being of individuals from marginalized communities who often face discrimination, inequality, and limited access to resources. With the goal of ensuring fair treatment of these individuals, four programs were presented during NILG.

The Hiring Initiative to Reimagine Equity (HIRE), launched in 2022, [OFCCP & E.O.11246] is a joint initiative with the Equal Employment Opportunity Commission (EEOC) and OFCCP to reimagine hiring and recruitment practices to provide access to jobs for workers from underserved communities, including those from homelessness and individuals with food insecurity. The program hosted several roundtables with speakers from public and private organizations, including: (1) Untapped Potential: Reimaging Equity for Workers with Gaps in Employment History [Recorded HIRE Initiative Roundtable], (2) Skills-Based Hiring: Removing Barriers and Paving Pathways to an Inclusive Workforce, and (3) Decoded: Can Technology Advance Equitable Recruiting and Hiring? [Fourth HIRE Initiative Roundtable]

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Acting Director Hodge stressed that another piece of enforcement is the review of records from third parties during compliance evaluations. This impacts contractors who outsource human resource programs and processes, such as recruiting and hiring, compensation, and background checks. The OFCCP reinforced their position that even though these programs are being outsourced, the responsibility for compliance rests with the contractor.

From a more strategic perspective, Hodge stated that the OFCCP is about to unveil a final rule, titled “Pre-enforcement Notice and Conciliation Procedure,” which outlines the way the agency will investigate cases of discrimination, including the use of the Pre-determination Notice (PDN) [Identifying & Remedying Discrimination]. The new rule will provide OFCCP with more leeway for the use of the PDN, which provides contractors with advanced notice of the agency’s findings when they plan to allege discrimination and allows them to respond to the allegations prior to litigation or conciliation.

At the conference, much discussion occurred around the new Supply and Service (S&S) scheduling letter and itemized listing. There appears to be sweeping changes on the horizon with regard to requirements during compliance evaluations. More details about the November 2022 changes and April 2023 changes are available on OutSolve’s blog. The number of public comments submitted asking OFCCP to curtail or alter their views was a point of conversation as well. The existing S&S scheduling letters expired on April 30, 2023 but will continue to be used until final OMB approval.

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OFCCP recognizes the vital role of enforcement in strengthening affirmative action programs and enforcing E.O. 11246, Section 503 of the Rehabilitation Act, and the Vietnam Era Veterans Readjustment Assistance Act (VEVRAA). Assuming the final rule on PDNs is approved, it will grant OFCCP greater flexibility in issuing them while shortening the response time for contractors.

While the compliance responsibilities associated with third-party vendors are also placed on the contractor, OFCCP's renewed focus demonstrates their unwavering determination to uphold compliance requirements, regardless of who manages the data and documentation.

As we await the changes to the S&S scheduling letter and itemized listing, it remains to be seen how some of the proposed modifications may burden contractors, potentially leading to more extensive reviews and stricter enforcement.

 

Debra Milstein Gardner

Debra Milstein Gardner has worked in the Equal Employment Opportunity (EEO) and Affirmative Action (AA) space for the past 43 years while working in the public and private sectors in various human resources compliance roles. She began her career working for the Equal Employment Opportunity Commission and then went to the Marriott Corporation for nine years working in EEO, Affirmative Action and field human resource roles. In 1990, Debra founded Workplace Dynamics LLC providing EEO, AA, and DEI consulting services to government contractors. In 2016, Debra sold the affirmative action portion of Workplace Dynamics to OutSolve LLC and works part-time as a Market Analyst. Debra is a sports fanatic, routing for the Baltimore Ravens and all Virginia Tech Hokie teams. She loves to hike and boat in her mountain and lake community of Lake Lure, NC.

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