Schuyler Affirmative Action Practice

         A Law Firm Specializing in Federal Contractor Compliance

Did You Know?

New Assistance Available to Federal Contractors

On November 30, 2018, OFCCP issued Directive 2019-03, outlining steps it intends to take to enhance the agency's existing Help Desk.  One of the steps was to incorporate Opinion Letters to provide fact-specific guidance about OFCCP's jurisdictional coverage, regulations, and policies.  

On January 24, 2019, OFCCP issued an invitation to federal contractors and their representatives to reach out through the Help Desk Portal to submit suggestions for issues that contractors would like to see addressed in specific Opinion Letters.  You may also email OFCCPOpinionLetters@dolgov.  

Compliance Review and Early Resolution Procedures 

On November 30, 2018, OFCCP rescinded Dir 2011-01 (ACE - Active Case Enforcement procedures), stating that OFCCP will follow the Federal Contract Compliance Manual and announced its commitment to promote early and efficient supply-and-service compliance.

OFCCP Ombud Service Returns

On September 19, 2018, OFCCP announced that it will bring back its Ombud Service  to facilitate the fair and equitable resolution of specific types of concerns raised by OFCCP external stakeholders in coordination with regional and district offices.

OFCCP Embraces Transparency

On September 19, 2018, OFCCP issued Directive 2018-08, which provides for transparency in all stages of OFCCP compliance activities.  This is to help contractors comply with their obligations and know what to expect during a compliance evaluation, and to protect workers from discrimination through the consistent enforcement of OFCCP legal authorities.

New Federal Contractor Recognition Program Announced

On August 24, 2018, OFCCP issued Directive 2018-06, which announced a new recognition program for contractors with programs and initiatives that are innovative, have achieved demonstrable results, and that could be taught or incorporated into contractor peer mentoring programs. 

Transparency in Compensation Analysis

On August 24, 2018, OFCCP issued Directive 2018-05, which outlines standard procedures for reviewing contractor compensation practices during a compliance evaluation.

Focused Reviews Coming

On August 10, 2018, OFCCP issued Directive 2018-04, stating that a portion of future scheduling lists will include focused reviews as to each of the three authorities that the Office of Federal Contract Compliance Programs enforces: Executive Order 11246 (E.O.), as amended; Section 503 of the Rehabilitation Act of 1973 (Section 503), as amended; and Vietnam Era Veterans' Readjustment Assistance Act of 1974 (VEVRAA), as amended. 

Predetermination Notice Now Required

On February 27, 2018, OFCCP issued Directive 2018-01, which now requires a Predetermination Notice (PDN) to be issued before a Notice of Violation is issued.  Prior to the directive, regional offices had discretion to issue the PDN.

VEVRAA Hiring Benchmark Revised 3/30/18

On March 30, 2018, the hiring benchmark for Veterans was revised to 6.4%, down from 6.7%.

OFCCP Posts New Directive on Gender Identity and Transgender Status

On August 19, 2014, the OFCCP Director issued a new directive to reaffirm OFCCP's commitment to fully investigate and seek remedies for findings of sex discrimination on account of an individual's gender identity or transgender status.  President Obama issued Executive Order 13672, which amended Executive Order 11246, on July 21, 2014, expanding protections to prohibit discrimination on the basis of sexual orientation and gender identity.  The Department of Labor will have 90 days to draft regulations to implement the requirements, which will impact all contracts established on or after the effective date of the final regulations. 


OFCCP Published Final Rules for VEVRAA and Section 503

Revisions to the Vietnam Era Veterans' Readjustment Assistance Act (VEVRAA) of 1974 and Section 503 of the Rehabilitation Act of 1973 create new obligations for federal contractors, including the establishment of employment benchmarks for Veterans and goals for Individuals with Disabilities.  New requirements also include additional data collection and solicitation of self-identification information on veteran and disability status.  The final versions were published on September 24, 2013, and become effective on March 24, 2014. More information is available at VEVRAA Regulations and 503 Regulations.  If you would like a copy of the comments on the VEVRAA Regulations submitted by Schuyler Affirmative Action Practice, please make a request via email to

Federal Contract Compliance Manual (FCCM) Revisions

The FCCM provides new and experienced compliance officers the procedural framework for executing compliance evaluations and complaint investigations. It provides procedural and technical guidance on compliance issues based on current agency procedures and processes. and improves consistency across the agency´s regional and field offices.

OFCCP Issued Guidance on Compensation

On February 26, 2013, OFCCP rescinded two pay discrimination enforcement guidance documents, aligning OFCCP compensation enforcement with Title VII of the Civil Rights Act of 1964, and issuing Directive 307 to improve compensation investigation procedures and protocols. 

The first is called Interpreting Nondiscrimination Requirements of Executive Order 11246 With Respect to Systemic Compensation Discrimination ("Compensation Standards"), 71 FR 35124, and the second is called Voluntary Guidelines for Self-Evaluation of Compensation Practices for Compliance with Nondiscrimination Requirements of Executive Order 11246 ("Voluntary Guidelines"), 71 FR 35114. The Compensation Standards described the procedures OFCCP generally should follow when issuing a notice of violation for pay discrimination, while the Voluntary Guidelines contained a set of directions that contractors could choose to follow in order to show compliance with their obligation to evaluate their pay practices for fairness. With this Rescission, OFCCP will no longer be relying on these documents in evaluating how contractors comply with federal laws against pay discrimination, or in reviewing how contractors internally monitor their own pay practices.

Directive 307, Procedures for Reviewing Contractor Compensation Systems and Practices, describes OFCCP's new investigation procedures, which are designed to ensure that the agency considers all practices that may lead to pay disparities in violation of Title VII and uses all available evidence to evaluate contractor compliance with Executive Order 11246.

For more information, see

Revisions to the Scheduling Letter and Itemized Listing

OFCCP made significant changes to the Scheduling Letter, and began issuing the revised letter in October 2014.  Individual compensation data (which goes well beyond base pay) is now requested, and personnel activity data must now be submitted by five ethnic/racial categories, as well as "unknowns" in the data. 

For a copy of the new scheduling letter, see

FAAP Directive 

A new FAAP Directive was issued by OFCCP on December 17, 2012, which describes the application process to seek approval for and develop an affirmative action plan based on function or unit. Director Shiu will approve all Functional Affirmative Action Plan (FAAP) agreements. The FAAPs will expire after 3 years.  To see the text of the directive, go to:  FAAP Directive.

OFCCP Regulations and Academic Institutions Discussion Group Formed

Representatives from the academic compliance community have found that there are several areas in the regulations that do not easily apply to academic Affirmative Action Plans.  The inclusion/exclusion of several types of "employees," analyzing compensation of faculty, and recruitment for research positions are just some of the areas that pose difficulty.  Most people in this line of work, on both sides, are "trying to do the right thing" but academic institutions find that strict adherence to the regulations is challenging because the regulations, as currently written, do not adequately address the compliance issues they face.

Schuyler Affirmative Action Practice has coordinated a group of over 100 representatives from the academic compliance community to do the following:  1) Develop a comprehensive list of issues to address; 2) Discuss approaches taken by various academic institutions and experiences in OFCCP audits; and 3) Summarize the information to present as a starting point for a discussion with OFCCP.  In March 2011 we administered a survey which was completed by over 100 academic institutions.  The results of the survey were shared with Director Shiu on June 14, 2011.  They were presented as part of a panel discussion held at the AAAA Summit on June 29, 2011, and was presented at the NILG Conference on July 27, 2011.

In September 2011, Schuyler AAP hosted a Listening Session on  academic issues at the OFCCP office, which provided an opportunity for the academic community to speak directly to Director Shiu and her key personnel, about the challenges academic institutions face in complying with the regulations.  In October 2011, Director Shiu asked us for a list of the issues and proposed recommendations for resolution.  On May 10, 2012, we presented the document to Director Shiu.  Per OFCCP's request, we also compiled a list of Availability Sources for academic institutions, to provide alternatives to traditional Census data.  Subsequent discussions with OFCCP have clarified several areas.  For information on the latest communications, or for   a copy of the Availability Sources document, please email  We are grateful to have a unique opportunity right now, working with an administration that is open to change and actively seeks the advice and counsel of the contracting community. 

If you would like to participate in this group, please email

OFCCP Will Not Conduct I-9 Inspections When On-Site

On November 16, 2010, Director Shiu issued Transmittal 291, rescinding the procedures for inspection of the Form I-9 while conducting the onsite phase of a compliance evaluation.  The Office of Federal Contract Compliance Programs has had a practice of reviewing 1-9s while on-site, which was in fulfillment of terms of a Memorandum of Understanding (MOU) with Homeland Security's Immigrations and Customs Enforcement.  This was time-consuming for both OFCCP and for the federal contracting community.  This practice will be not be included in future on-site investigations.  Federal contractors are still expected to remain in compliance with the regulations related to the I-9s.

Genetic Information Nondiscrimination Act of 2008 (GINA) Final Regulations Issued

The EEOC issued final regulations on November 9 implementing the employment provisions (Title II) of the Genetic Information Nondiscrimination Act of 2008 (GINA).  GINA prohibits use of genetic information to make decisions about health insurance and employment, and restricts the acquisition and disclosure of genetic information.  Title II of GINA represents the first legislative expansion of the EEOC's jurisdiction since the Americans with Disabilities Act of 1990 (ADA).

The EEOC has also issued two question-and-answer documents on the final GINA regulations, one of which is aimed at helping small businesses comply with the law.  Links to the regulations and to the questions-and-answers are on the EEOC's website.

Executive Order 13496 Issued

OFCCP issued Executive Order 13496, which became effective on June 21, 2010.  The new regulations impose new posting requirements for federal contractors that apply to contracts entered into or modified on or after June 21, 2010.  To see the text of the order, go to: Executive Order 13496

Office of Federal Contractor Compliance (OFCCP) Website