OFCCP Director Signals Shifts Regarding Self-Audits, Use of Compensation Data in FWPC Webinar

November 12, 2021

U.S. Office of Federal Contract Compliance Programs Director Jenny Yang highlighted several of the agency's priorities for HR Policy’s Future Workplace Policy Council, including emphasizing the importance of self-audits but raising questions as to whether such audits will continue to be protected under attorney-client privilege in all cases.

“When you see a lack of compliance particularly around pay equity,” Director Yang said, “doing a self-audit on a regular annual basis and being willing to provide that information to OFCCP when we request it is important as part of this process.”  She also said that the compensation committee and senior management should be briefed on the results so they understand the impact to the organization.

Director Yang noted that the OFCCP and EEOC were working closely together on the potential for the use of EEO-1 Component 2 compensation data to aid in federal contractor enforcement.  “OFCCP does believe the EEO-1 component 2 pay data offers promise and could be utilized to strengthen our enforcement efforts.  We are interested in evaluating that data to see whether it can enhance our scheduling of federal contractors for review and provide additional data points for us to use during our evaluations.” 

The panel included:  Former U.S. DOL Acting Solicitor David Fortney, Fortney & Scott LLC; FWPC Advisory Board Member Mike Fitzsimmons, Vice President, Labor Relations & Global HR Policy at the Boeing Company; Josh Smith, Senior Manager of Corporate Contracts and the Boeing Company; and HR Policy Health and Employment Policy Vice President Mark Wilson, who moderated a discussion on company views. 

Applying new language to existing contract agreements in a compressed timeframe to comply with new regulatory requirements emerged as a notable concern, in particular with midterm election season approaching and pressure on the Biden administration to deliver on its priorities heating up.  Other issues discussed included reconciling compliance conflicts between the National Labor Relations Board, the OFCCP, and the EEOC regarding issues such as what constitutes retaliation. 

Join us next week for a discussion with NLRB Chair Lauren McFerran, Member John Ring, HR Policy staff, member companies, and legal experts in a discussion that will cover the Board’s agenda moving forward.  These include, but are not limited to, card check, independent contractor classification, employer handbook rules and policies, and employee activities protected against employer discipline.  You can find session and registration information here.