Focus shifts again to shielding disability and military veterans, sparking renewed debates on protections and rights
Federal Contractors Brace for Resumed OFCCP Audits on Disability and Veterans' Protections
The Office of Federal Contract Compliance Programs (OFCCP) is preparing to resume audits and investigations into how federal contractors treat veterans and individuals with disabilities. This comes after a pause that was in place due to the revocation of Executive Order 11246.
The OFCCP's enforcement mechanism can result in recovery for individuals impacted, including non-monetary measures like a monitoring period and significant financial recovery on behalf of American workers.
Federal contractors should take specific preparatory steps for the resumed audits and investigations. These steps include:
- Maintaining and updating affirmative action plans (AAPs) for veterans and disabled individuals as required under VEVRAA and Section 503. This includes continued obligations to prepare outreach, recruitment, and utilization analysis efforts targeting these groups.
- Conducting thorough self-audits and voluntary assessments to identify and remedy potential compliance issues proactively. The Department of Labor encourages programs like SALUTE (supporting USERRA compliance) and other self-audit initiatives that help contractors ensure adherence to federal labor laws protecting veterans and disabled persons.
- Reviewing and enhancing recordkeeping and data collection practices, including the evaluation of outreach effectiveness for disabled individuals, even though proposed OFCCP rules may rescind certain self-identification and utilization goals. Contractors should remain prepared to demonstrate good faith efforts in recruitment and accommodation provisions.
- Responding to any OFCCP communications promptly, including voluntary information submissions invited by OFCCP leadership, which may be a sign of increased information gathering ahead of renewed compliance activities.
- Staying current with regulatory developments, including proposed changes to EO 11246 enforcement and disability/veterans regulations, to ensure compliance with evolving legal obligations and avoid pitfalls during audits.
- Providing focused training on veteran and disability protections for staff involved in compliance. Policies should reflect current regulatory requirements, affirmative action goals, and non-discrimination mandates.
The audit begins with a desk audit phase, where the company provides a large amount of documentation related to employee compensation, race, gender, policies, procedures, accommodation requests, and more. If issues are identified during this phase, the OFCCP may expand the audit to include employee interviews and on-site visits. It's important to note that the OFCCP typically follows Title VII and investigates issues affecting all individuals, not just women and minorities.
In an uncertain regulatory environment, it is important for contractors to work with their compliance team, external legal counsel, or legal counsel to understand the framework of compliance and stay abreast of changing topics. Contractors should also ensure clear communication between the people signing contracts and HR to avoid non-adherence to obligations and potential False Claims Act liability.
Sheila Abron, a Partner at Fisher Phillips LLP, emphasizes the importance of these preparatory steps. "Federal contractors should be proactive in their compliance efforts," she says. "By taking these steps, they can demonstrate their commitment to equal employment opportunities and ensure they are in the best possible position should an audit occur."
The Department of Labor has submitted a potential budget request that could lead to the OFCCP and Section 503 and VEVRA responsibilities being transferred to other agencies within the federal government. However, until formal regulation changes are finalized, contractors must continue to comply with existing regulations related to affirmative action plans for veterans and individuals with disabilities.
The OFCCP enforces Executive Order 11246, Section 503, and VEVRA, which are related to affirmative action for different populations. These regulations aim to ensure that federal contractors and subcontractors do not discriminate in employment decisions and provide equal employment opportunities to women, minorities, veterans, and individuals with disabilities.
In conclusion, federal contractors should sustain affirmative action plans focusing on veterans and persons with disabilities, utilize Department of Labor self-audit programs to identify and correct problems, maintain comprehensive documentation of outreach, recruitment, and accommodation efforts, monitor and respond to OFCCP requests or communications promptly, keep abreast of evolving OFCCP regulations and guidance, and provide focused training on veteran and disability protections for staff involved in compliance. This comprehensive approach will position contractors to effectively manage resumed audits and investigations by the OFCCP relating to disability and veterans’ protections.
- Aware of policy-and-legislation changes related to the federal workforce, federal contractors should maintain and update their affirmative action plans, focusing on veterans and persons with disabilities, to reflect the requirements under VEVRAA and Section 503.
- As the OFCCP resumes audits and investigations on disability and veterans' protections, federal contractors should proactively stay current with general-news and regulatory developments to ensure compliance and avoid potential pitfalls.
