OFCCP Director’s Departure Should Not Change Agency’s Priorities

OFCCP recently lost Trump-appointed Director Ondray Harris due to his resignation. Deputy Director Craig Leen takes Harris’s place in the interim. Harris’s departure raises some important questions that covered federal contractors may be asking.

What was Harris able to accomplish during his short tenure?  During Harris’s time at the Agency, there were few policy developments. The Agency extended the moratorium on audits for many health care providers who offer medical coverage under the military’s TRICARE program. In addition, the Agency made good on its promise to provide contractors with additional transparency by (1) publishing its scheduling methodology; and (2) releasing a guidance document titled “What Contractors Can Expect” that stresses good behavior by the Agency and its staff.

What was Harris not able to accomplish?  Many in the contractor community will be disappointed that Harris was not able to rescind the Obama-era compensation guidance (Directive 307). “Day-one” predictions that the guidance would be gone immediately after President Trump appointed a permanent director proved ambitious and did not take into account the complex politics of a new administration. In other words, hitting “delete” on a previous administration’s policies entails a weave of political and administrative considerations. And while the Agency could have technically dropped the guidance at its whim, factors such as the overall deliberate nature of Secretary Alexander Acosta’s tenure at the Department of Labor and the high number of vacancies at the White House contributed to not allowing OFCCP to move freely on this high priority.

What changes should we expect?  Little, if any. OFCCP drafted its last two budgets without input from Harris, and other appointed and career officials have led the Agency longer than Harris during the Trump administration. As such, we do not expect to see any large policy shifts. On the audit and enforcement fronts, we expect to see a continuation of regional autonomy, with some regions continuing to take novel positions while others remain conservative. Contractors on the West Coast, however, will be relieved at the departure of Janette Wipper, the former Pacific Region Regional Director who aggressively took on contractors. Nonetheless, contractors should take note that all of the other current regional directors worked under the previous administration and many maintain vibrant audit and enforcement dockets. Further, OFCCP’s Centers of Excellence—targeting tech and financial services companies—remain a priority for the Agency and a concern for contractors in those sectors.

When will Trump appoint a new Director?  We do not expect a new Director to be appointed before the November midterm elections. While the Director position does not require Senate confirmation, it has been our experience that not much gets done in the run-up to midterm elections as the White House usually seeks to avoid significant confrontations. Moreover, vacancies do not seem to bother this administration. As tracked by the Washington Post, the Trump administration has filled only 347 of the 694 high-level executive branch positions and 162 of the vacant positions have no nominee.

Federal contractors should continue to monitor the Agency’s developments and not assume that the lack of an appointed Director puts them at ease. OFCCP audits and enforcement actions can be a significant disruption to the workplace and employers should seek experienced assistance in defending Agency actions.