OFCCP Director Yang Offers Preview of Coming Enforcement Attractions to Federal Contractors

August 3, 2021

On Aug. 2, 2021, Office of Federal Contract Compliance Programs (OFCCP) Director Jenny Yang spoke to a live and virtual audience at the 2021 National Industry Liaison Group (NILG) Conference in Nashville, Tennessee. As part of her address, Yang outlined some of OFCCP’s new priorities under the Biden administration and provided several comments about ongoing enforcement efforts.

OFCCP is the unit of the U.S. Department of Labor responsible for enforcing the special affirmative action rules and regulations that apply to covered federal contractors and subcontractors. NILG, in turn, is a nonprofit organization originally formed for the purpose of improving communications between the OFCCP, the U.S. Equal Employment Opportunity Commission and covered employers across the country.

Of particular interest to employers nationally were Yang’s thoughts on OFCCP’s top areas of focus. She noted that these priorities include:

  1. building, hiring and investing in OFCCP staff;
  2. “revitalizing [OFCCP’s] construction work,” to include proposed changes to compliance reviews to allow for desk audits prior to an on-site;
  3. “taking steps to encourage supply and service contractors to use functional affirmative action plans or FAPs” (versus typical establishment-based AAPs);
  4. strengthening OFCCP’s “neutral selection process” for contractor auditing; and
  5. undertaking new initiatives to “update our supply and service regulations.”

Key highlights from Yang’s speech also include the following:

  • Current plans are for OFCCP staff to begin a phased re-entry process after Labor Day for returning to their physical offices, with a full return-to-work target of Nov. 8, 2021.
  • Consistent with this return transition, all in-person OFCCP on-site audits will continue to remain on hold through Nov. 8, 2021 — with “virtual only” on-sites to continue prior to that time.
  • As part of OFCCP’s efforts to re-examine its audit selection process, Yang ominously noted that OFCCP will be “exploring how we can incorporate broader data sets outside of OFCCP’s own findings” of alleged noncompliance as an added selection factor.
  • One of the potential regulatory updates under consideration is “requiring disaggregated goal setting by race and ethnicity” (i.e., versus general “minority” goals used in current AAPs).
  • Regulatory updates may further include OFCCP “looking at alternatives to the traditional establishment-based [AAP] approach” — alluding perhaps to an effort to require FAPs of some type across a contractor’s U.S. facilities and organizational platforms.
  • Yang stated that OFCCP is “looking at how we collect data” included on applicant invitations to self-identify to address, among other things, “reporting for persons who are non-gender binary.”
  • Yang also notably did not address or make any comments on the regulatory elephant in the room — that is, the final practical scope, timing and operational roll-out of OFCCP’s proposed annual AAP certification requirement.

Should you have any questions about Director Yang’s NILG comments or federal affirmative action compliance generally, please contact the author of this article, your McGuireWoods contact, or a member of the firm’s affirmative action, labor and employment or federal contracting teams.

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