Unbeknownst to many, before the decade came to a close, OFCCP quietly released an updated version of its Federal Contract Compliance Manual (FCCM). The agency formally announced it in an email sent out on January 6, 2020.
The FCCM is essentially the rulebook that governs how OFCCP Compliance Officers (COs) conduct compliance audits, investigate complaints, and provide technical assistance to federal contractors and subcontractors.
The updates were made to make the FCCM consistent with the new directives OFCCP issued in the past year and a half, reflect changes in practices, as well as add language to cover all protected bases such as sexual orientation, gender identity, and discussing/disclosing/inquiring about compensation. More importantly, it provides transparency and greater clarity on OFCCP’s approaches. OFCCP put together a nice one page summary of all the changes it made, broken down by chapter.
The manual includes the evaluation report forms COs use to write up their findings, such as the Compliance Check Control Sheet and the Standard Compliance Evaluation Report (SCER). I find the accompanying instructions for the SCER particularly insightful as it gives us a glimpse into what the agency is directing its Compliance Officers to look for. Specifically, what I find very interesting are the examples of problem areas provided in the SCER template, which is something new as OFCCP did not provide such examples in the old SCER template.
Here are a few of these examples we can glean from:
The SCER also now includes a new Part E where the CO inserts a copy of the Compliance Check Control Sheet into the SCER. Note that the Compliance Check Control Sheet audits whether the contractor is keeping records of the following:
- that it is listing its jobs with the appropriate employment service delivery system (ESDS)
- accommodations it provided to individuals with disabilities
- information on prior year report
The changes also clarify how Compliance Officers check for compliance with the mandatory job listing requirement during the desk audit phase by including in the appendices the letter it sends to the ESDS. To determine the contractor’s compliance with the obligation to list their job openings, OFCCP is requesting the ESDS to furnish the following:
“1. The specific job orders placed with your office by the contractor for the past two years; and
2. Confirmation that the contractor provided information about its openings in a manner and format that allowed your office to provide priority referral of veterans.”
While the updates to the FCCM were mostly meant to align with the changes already announced in prior directives, OFCCP left many interesting bits and pieces that are like breadcrumbs we can follow to give us an idea of what it might look for in audits going forward. Going by the examples above, you would definitely want to make sure that you have the job order numbers for every job order you placed with the ESDS for the last 2 years. You would also want to confirm that your job vacancy announcements are being sent to your recruitment sources.
I encourage you all to read the FCCM and be familiar with the SCER, the Compliance Check Control Sheet, and the other forms and letters OFCCP uses in its audits. I once mentioned during a training on the FCCM: Begin with the end in mind. If you know what a good SCER report is going to look like, you can reverse engineer your way to a successful audit.