UPDATE: As of January 20, 2021, Executive Order 13950 has been rescinded by President Joe Biden.

The Office of Federal Contract Compliance Programs (OFCCP) has requested information from Microsoft Corporation and Wells Fargo Bank, N.A. regarding diversity initiatives at each company. Microsoft and Wells Fargo had pledged in June to double the number of Black managers in their companies. OFCCP sent letters to Microsoft and Wells Fargo dated September 29, 2020, suggesting that these efforts may be a form of discrimination. It appears that accurate copies of these letters from OFCCP have been uploaded to a document sharing site.

Microsoft has responded on its blog site that the company has “every confidence that Microsoft’s diversity initiative complies fully with all U.S. employment laws.” The Wall Street Journal reported that Wells Fargo has similarly responded that the company is confident its actions comply with U.S. employment laws.

Early Resolution Conciliation Agreements May Affect OFCCP Inquiries

Both Microsoft and Wells Fargo recently entered into early resolution conciliation agreements (ERCAs) with OFCCP. The Microsoft ERCA is dated September 4, 2020, while the Wells Fargo ERCA is dated August 11, 2020. These ERCAs were used to resolve compliance reviews occurring at various locations.

It is unusual for OFCCP to address employment issues at a specific company outside of the scope of an open compliance review. However, the letters that are available on the Internet from OFCCP Director Craig Leen to Microsoft and Wells Fargo reference the ERCAs. This suggests that OFCCP is relying on its right to review compliance with the provisions of these companies’ respective ERCAs in questioning the initiatives to hire Black managers.

OFCCP’s Recent Initiatives

Even as OFCCP questions Microsoft and Wells Fargo on their hiring, the agency is in the midst of various new initiatives. In the last month, the agency has taken the following actions:

• Released two new corporate scheduling announcement lists (CSALs) that announce thousands of pending compliance reviews
• Announced two new types of compliance reviews — reviews focused on promotions and reviews focused on accommodation
• Released a notice regarding a process to have federal contractors and subcontractors certify their compliance with the requirement to have affirmative action programs
• Opened a hotline to take complaints relating to Executive Order 13950 on Combating Race and Sex Stereotyping

We have discussed the actions noted above in recent posts on our news page.