FCCM Update Alerts

March 20, 2020

OFCCP’s Federal Contract Compliance Manual (FCCM) has been updated! The Manual provides guidance for OFCCP’s compliance officers (“COs”) in conducting compliance evaluations, complaint investigations and providing federal contractors with compliance assistance. It has been updated throughout to reflect revisions to OFCCP’s regulations, changes in practices, and to ensure transparency and provide greater clarity for the user on a number of issues.

Provided in this Update Alert, by chapter, section, or document, is a list of the many changes that have occurred since the FCCM was last updated in 2014. Links are embedded to direct you to the start of each FCCM chapter, section, or directive or other identified document. We suggest that as you review the updates you read the entirety of the referenced section(s) in which an update occurred, (e.g. for Focused Reviews read Sections 1A, 1B and the Focused Review Directive), in order to better understand the full context of the update.    

Chapter 1 – Desk Audit

  • Inserted new protected bases (sexual orientation, gender identity, discussing, disclosing, inquiring about compensation), where appropriate
  • Revised to align with Focused Review Directive (e.g., 1A00, 1B03)
  • Revised to align with Transparency Directive (e.g., 1B04, 1C, 1R)
  • Corrected references for figures and appendices and other clarifying, nonsubstantive edits (e.g., 1A04, 1B03, 1B05)
  • Added language describing Academic Institution Evaluations (1A11)
  • Referenced new tool COs may use to determine if contractors reported to the GSA that they had developed their AAPs (1B04)
  • Memorialized current procedures on desk audit data requests (1C04)
  • Memorialized current procedures for reviewing the Itemized Listing for inclusion (1E03)
  • Added and updated language describing the Section 503 and VEVRAA nondiscrimination and affirmative action requirements, where appropriate, including regulatory citations
    • Recordkeeping Requirements (1C02)
    • Missing AAP Elements (1E02)
    • Review of Section 503 AAP and Itemized Listing Data for Acceptability (1G)
      • Outreach and Positive Recruitment (1G07)
      • Data Collection Analysis (1G12)
      • Section 503 Utilization Goal Analysis (1G13)
    • Review of VEVRAA AAP and Itemized Listing Data for Acceptability (1H).
      • Outreach and Positive Recruitment (1H07)
      • Data Collection Analysis (1H12).
      • VEVRAA Benchmark Database (1H13)
  • Referenced new tool COs use to check for VETS-4212 Reports
  • Clarified how to check for Mandatory Job Listing Requirement at desk audit
  • Updated compensation section to align with the revised compensation directive (1P)
  • Revised to align with Early Resolution Directive (1R01)
  • Clarified that if a compliance evaluation closes at desk audit, the CO does not need to complete portions of the SCER relevant to information obtained during onsite investigations (1R02)

Chapter 2 – Onsite

  • Updated equal opportunity clause requirements to include Section 503 and VEVRAA Regulations, and amendments to Executive Order 11246 (adding sexual orientation, gender identity and pay transparency protections)
  • Clarified “pre-onsite,” in the context of desk audit, and “onsite” when supplemental data requests are made beyond the desk audit stage but before going onsite (2B, 2C04)
  • Added onsite confirmation letter template
  • Referenced term “nonstatistical evidence” to align with current guidance on evidence (2E00)
  • Updated to include pay transparency discussion and onsite procedures (2E03b)
  • Updated procedures for interviews for when contractors wants to have a lawyer or management present. (2F00d-e)
  • Added and updated language describing the Section 503 and VEVRAA nondiscrimination and affirmative action requirements, where appropriate, including regulatory citations
    • Section 503 AAP and Additional Requirements (2H)
      • Analyze Data Collected on Applicants and Hires with Disabilities (2H00k)
      • Invitation to Self-Identify as an Individual with a Disability (2H02)
    • VEVRAA AAP and Additional Requirements (2I)
      • Analyze Data Collected on Applicants and Hires Who Identified as Protected Veterans (2I00k)
      • Invitation to Self-Identify as a Protected Veteran (2I02)
  • Added and updated language describing the Sex Discrimination Regulations, where appropriate, including citations (2K)

Chapter 3 – Construction

  • Inserted new protected bases (sexual orientation, gender identity, discussing, disclosing, inquiring about compensation), where appropriate
  • Updated description of Mega Construction Program to match its current scope regarding compliance assistance (3B04 and 3C03)
  • Corrected change in terms (e.g., 3C00 and 3C02 “economic area” to “non-SMSA”)
  • Updated construction subcontract award information relevant to construction subcontractor award notifications (3C02)
  • Lifted language from Chapter 1 on pre-review preparation, rather than referring readers back to Chapter 1 (3E00 – 3E06)
  • Edited for consistency across chapters (3E03)
  • Edited the Construction Standard Compliance Evaluation Report (SCER) to remove specific parts of the SCER where information must be entered in a newly adopted Excel version (3Q)
  • Added and updated language describing the Section 503 and VEVRAA nondiscrimination and affirmative action requirements, where appropriate, including regulatory citations (3N)

Chapter 4 – Corporate Management Compliance Evaluation (CMCE)

  • Inserted new protected bases (sexual orientation, gender identity, discussing, disclosing, inquiring about compensation), where appropriate
  • Added and updated language describing the Section 503 and VEVRAA nondiscrimination and affirmative action requirements, where appropriate, including regulatory citations
  • Edited for consistency with Chapter 1 (4B06)

Chapter 5 – Functional Affirmative Action Program (FAAP)

  • Inserted new protected bases (sexual orientation, gender identity, discussing, disclosing, inquiring about compensation), where appropriate
  • Updated to align with revised FAAP Directive (5A)
  • Added a section explaining the FAAP Agreement (5A02)
  • Clarified the role of the National Office in Scheduling FAAP Reviews and creating an electronic Chronology Log (5B00 – 5B01)
  • Clarified the role of the National Office in proactively providing compliance history to the field (5B03)
  • Added and updated language describing the Section 503 and VEVRAA nondiscrimination and affirmative action requirements, where appropriate, including regulatory citations
    • Review of Section 503 and VEVRAA AAPs (5C00)

Chapter 6 - Complaints

  • Inserted new protected bases (sexual orientation, gender identity, discussing, disclosing, inquiring about compensation), where appropriate
  • Updated language to reflect current agency procedures on referral and retention of complaints (6B)
  • Added section on providing contractors a 10-day notice, to comply with Title VII and Section 503 (6C02)
  • Added language extending the time COs have to perfect complaints to 15 days (6C03)
  • Added and updated language describing the Section 503 and VEVRAA nondiscrimination and affirmative action requirements, where appropriate, including regulatory citations
    • Allegations Specific to Disability Complaints (6E06)
    • Allegations Specific to VEVRAA (Non-Disability) Complaints (6E07)
    • Gathering Relevant Data and Conducting Interviews (6I03)
      • Disability Complaints (6I03d)
      • Complaints from Protected Veterans (6I03e)
  • Added new language to describe EO 11246 protections based on sex, sexual orientation, gender identity, and the pay transparency protections
    • Allegations Specific to EO 11246 (6E05)
    • Gathering Relevant Data and Conducting Interviews (6I03)
      • Claims on the Basis of Sexual Orientation (6I03c2.
      • Claims on the Basis of Gender Identity (6I03c3)
      • Pay Transparency Claims (6I03c4)
      • Not Making an Accommodation for Pregnancy (6I03c5)
  • Clarified legal procedures on when to issue a notice-of-right to sue (6L)
    • Clarified issuance of notice anytime OFCCP administratively closes a dual filed complaint that is not being referred (6L04)
  • Clarified that OFCCP seeks punitive and compensatory damages when acting as EEOC’s agent – not just punitive damages (6L05c)
  • Added Department of Justice letter template for COs to use

Chapter 7 – Relief

  • Updated references to Section 503 and VEVRAA, as appropriate

Chapter 8 – Resolution of Noncompliance

  • Updated to align with the Predetermination Notice (PDN) Directive, including a new template PDN (8B02, 8E00, 8E01)
  • Added language that a contractor has 5 days from the due date of a progress report to submit it unless a reasonable extension is requested (8B04)
  • Added language to make clear that Show Cause Notices are issued whenever the contractor refuses to provide access to records (8D01)
  •  Modified regarding delegation authority to rescind Show Cause Notices without express approval from National Office (8D08)
  • Updated to include new template notice documents that are attachments for the model Conciliation Agreement (8H)
  • Added reference to nonstatistical evidence to align with Compensation Directive (8K01)
  • Deleted Standard CA Text from Chapter (F-5)
  • Updated references to Section 503 and VEVRAA, as appropriate

Key Words and Phrases/Glossary of Abbreviations

  • Edited for consistency of definitions used in OFCCP technical assistance materials
  • Added terms that needed to be defined and removed terms no longer applicable (e.g., removed Active Case Enforcement (ACE))

Appendices

  • A-1. Modified Supply and Service SCER to achieve a number of improvements, including:
    • Reduced the number of pages
    • Consolidated some of the duplicate entries
    • Incorporated all Section 503 and VEVRAA requirements
    • Incorporated sexual orientation and gender identity requirements
    • Incorporated pay transparency requirements
    • Captured racial and ethnic data provided by the contractor
    • Added box on the SCER for COs to check to indicate whether Early Resolution Procedures (ERP) was used to align with ERP Directive
    • Added language on where to record ERP activities and pre-onsite efforts based on feedback from the SCER briefing
  • A-4. Added Sample Onsite Review Plan to be used as a template and tool for COs
  • Deleted the Appendix for the CMCE Supplement Narrative Report as it is captured in the SCER
  • Deleted the Appendix with Interest Rates on Back Pay because the information is available electronically

Figures

  • F-1.  Added Compliance Check Control Sheet
  • F-3. Updated Scheduling Letter and Itemized Listing with a new expiration date
  • F-4. Updated complaint form to include new protected bases: sexual orientation, gender identity, pay transparency protections
  • F-6. Replaced model CA with updated version in addition to template notice documents and deleted Addenda A and B
  • Replaced outdated Office of Management and Budget approved forms, (e.g., Complaint Form)

Letters

  • Letters updated to reflect current regulatory citations and agency processes and practices.
  • Deleted Request for Literature Search because the process is no longer used
  • Added new and updated letter templates to assist COs

OFCCP COs and other staff are available to provide compliance assistance and answer your questions.  Do not forget to visit our website at www.dol.gov/ofccp for available compliance assistance and informative materials.  You may also call the Help Desk with your questions or request for assistance.  Call OFCCP’s Toll⁃Free Help Line
1⁃800⁃397⁃6251 (TTY 1⁃877⁃889⁃5627).