The Office of Federal Contractor Compliance Programs (“OFCCP”) is focusing on the requirement that federal contractors adopt and annually update affirmative action plans. On August 2, 2018, the OFCCP’s Acting Director, Craig Leen, participated in a public discussion during which he reviewed the current compliance process for contractors. Currently, contractors simply “check the box” to certify compliance with affirmative action obligations in the General Services Administration’s (“GSA’s”) System for Award Management (“SAM”) registration system. Mr. Leen expressed concern that many contractors checking the box do not actually possess a valid affirmative action plan.
Mr. Leen’s comments were followed-up by a new OFCCP directive on August 24, 2018: Directive 2018-07. The subject of that directive is the commencement of an “Affirmative Action Program Verification Initiative.” OFCCP “is concerned that many federal contractors are not fulfilling their legal duty to develop and maintain AAPs [Affirmative Action Plans] and update them on an annual basis.” Therefore, Directive 2018-07 requires OFCCP to develop a comprehensive program to verify that federal contractors are complying with affirmative action obligations on a yearly basis. That program will include:
• Development of a process whereby contractors would certify on a yearly basis
compliance with AAP requirements.
• Inclusion of a criterion in the neutral scheduling methodology increasing the
likelihood of compliance reviews for contractors that have not certified compliance
with the AAP requirements.
• Compliance checks to verify contractor compliance with AAP requirements.
• Requesting proffer of the AAP by contractors when requesting extensions of time
to provide support data in response to a scheduling letter.
• Development of information technology to collect and facilitate review of AAPs
provided by federal contractors
Directive 2018-07 does not provide a timeline for implementation. Nevertheless, it is abundantly clear that compliance audits are coming. Therefore, federal contractors should carefully review their affirmative action plans for compliance, and make sure that those plan are updated annually.
Should TRICARE providers be required to implement affirmative action? That’s the issue that the United States Department of Labor raised when it issued Directive 2014-01 on March 7, 2014. Here’s a link to that directive: DOL Directive 2014-01. TRICARE is a federal healthcare program that provides benefits to American veterans. The DOL’s Office of Federal Contract Compliance Programs (“OFCCP”) is responsible for enforcement of the affirmative action obligations imposed upon federal contractors. Directive 2014-01 effectively imposed a five-year moratorium on requiring TRICARE subcontractors to comply with those obligations. On May 18, 2018, OFCCP extended that moratorium to May 7, 2021.
Federal laws and regulations require federal contractors and subcontractors to take affirmative steps to ensure equal employment opportunity in their employment processes. When it issued Directive 2014-01, the DOL recognized a difference of opinion as to who is a covered subcontractor under the law and what obligations the TRICARE subcontractor community has under the law. Because of that difference of opinion, DOL decided that it would impose the moratorium on enforcement.
The moratorium, however, was set to expire in 2019. OFCCP’s May 18, 2018 press release extended the moratorium. Here’s a link to the press release: May 18, 2018 Press Release. OFCCP provided the following rationale for extending the affirmative action moratorium: “Active-duty and retired service members, and their families, too often have difficulty accessing health care. There is evidence suggesting that continued uncertainty regarding the extent to which OFCCP requirements apply to TRICARE providers exacerbates these challenges. With the approaching expiration of the moratorium adding additional uncertainty, this extension will provide OFCCP time to receive feedback from stakeholders, relieve uncertainty, and give OFCCP an opportunity to evaluate and address legislation that may be enacted on this issue.”