February 21, 2012steptoe.com

The New OFCCP Compliance Review: What To Expect When Scheduled For A Review In 2012

Presented by Elizabeth A. Schallop CallWith comments by Lisa Barnum, Marian Enriquez and Rebecca Rand

The OFCCP Evaluation Process

OFCCP Evaluations and Investigations Corporate Scheduling Announcement Letter (not

FAAPs)• Sent if any establishments targeted for evaluation

Compliance evaluations Individual complaints

The Compliance Evaluation Process Desk Audit (incl. requests for information) On-Site Findings and Conciliation

Identifying Contractors For Compliance Reviews

Self-identification in EEO-1 Reports Increased visibility of subcontractors

Contracts First Project (2005)• Contractor selection list based on evidence of actual

contracts

• With access to OFCCP database of facilities where no compliance reviews have been conducted in recent years

New FAR reporting requirements• Prime contractors must report certain “first tier”

subcontracts

Compliance Evaluation Scheduling

Scheduling assignments sent to field offices Office Director mails Scheduling Letter notifying

the contractor 15 days after receipt, Compliance Officers

conduct introductory call and offer compliance assistance 30 days after receipt, AAP due to OFCCP

(OFCCP is less flexible with extensions.)

Evaluation ProcessExceptions/Exemptions

Contractors are exempt from OFCCP evaluations for 24 months from date of closure notice (for the audited facility).

No limit to the number of open compliance evaluations Eliminated 25 ongoing reviews exemption in

2010

The Desk Audit

Letter provides notice of desk audit Request submittal of:

AAPs (EO 11246 and VEVRAA/Section 503)

Personnel activity data (applicants/hires, promotions, terminations)

Compensation data (Item 11) EEO-1 reports (and VETS-100 reports)

New OFCCP Focus During Desk Audit Phase

Detailed review of your AAP Does the AAP Model make sense?

• Choice of Occupational Codes• Geographic Area

Is the utilization analysis accurate?• Goals (or lack thereof)• For ex.: There are 0 females in a job

group but no goal. Why?

New OFCCP Focus During Desk Audit Phase

What outreach efforts are indicated? Are outreach efforts tied to goals or

perceived shortages (regardless of impact issues)? For ex. – If there are few to no females

in the applicant log for a position, what is being done to increase female applicants?

New OFCCP Focus During Desk Audit Phase

Are outreach efforts for disabled individuals and veterans sufficient to meet obligations? Violations for non-compliance with

outreach obligations Conciliation Agreements as a remedy

Preparing The Desk Audit Response

Anticipate issues/questions The best defense is a good offense.

Analyze applicant/hire, promotion, termination and compensation data Gender/minority and racial/ethnic groups Don’t ignore impact re Males, Whites.

Understand continuing goals

Preparing The Desk Audit Response

DO Provide A Concise and Responsive Submittal Easily understandable format Give the OFCCP your good information Do not give the agency more than it requests Provide explanations of problem areas in the

submittal cover letter DO NOT Provide internal analyses if privileged:

Adverse impact analyses Compensation analysis

Panel Discussion and Questions

Requests For Information

Expect requests for information. Requests will be driven by information provided in

desk audit submittal. Applicant/hire data Compensation Outreach efforts

Immediate requests for detailed compensation data are common. 2% or more difference in pay. Limit supplemental data to job titles at issue.

Requests For Information

Use responses as an opportunity to explain any confusion.

Take advantage of opportunities for dialogue with the OFCCP. Stay on the pulse of the compliance review.

Provide timely and thorough responses with eye to resolving pending concerns and not raising new ones.

Panel Discussion and Questions

What Is An On-site Review?

Tour facility Postings

Review compliance with Executive Orders, VEVRAA and the Rehabilitation Act Focus on specific concerns, i.e.,

compensation, applicant/hire decisions.

What Is An On-site Review?

Review Employment Decisions Hiring decisions Promotion choices Termination decisions and reductions in

force Pay rate determinations Personnel files

What Is An On-site Review?

Interview managers and personnel involved with personnel decisions, i.e., hiring, compensation Interview Employees No longer inspect I-9 forms

Preparing For An On-site Review

Pre-tour your facility EEO/Labor Law posters and Veterans/Disabled

AAP Notice to View are displayed in conspicuous places.

Personnel and applicant files are stored in locked a cabinet or office

Completed invitations to self-identify demographic information are maintained in a confidential manner

Site provides structural accommodations for individuals with disabilities and appropriate facilities for male and female employees

Preparing For An On-site Review

Prepare documents for OFCCP review Obtain understanding from OFCCP on

documents to be reviewed Review your personnel records for

completeness and compliance Personnel files Job Opening and Applicant files

• Posting with state job service• Interview notes

Preparing For An On-site Review

Ensure vendor contracts (including hiring and temporary agencies) and purchase orders include the required language Prepare managers for witness

interviews – clarify the “message” Know when Legal Counsel is needed

During The On-site Review

Help the OFCCP understand your practices Corporate/legal representative present

during management interviews Review/revise interview statements

before signing Get temperature checks on status of

review/additional information needed Efficiently schedule on-site days.

The Ongoing On-site Review

On-sites are shorter and likely followed by more requests for information. Keep communication open with the

OFCCP and provide additional data and clarification, as needed. Many OFCCP concerns are resolved after

the on-site.

Bringing The Compliance Review To A Close

Notice of Compliance Minor Violation Letter

No reporting requirement, i.e., commitment to perform compliance requirement

Notice of Violation – Substantive Violations Usually accompanied by Conciliation

Agreement Conciliation Agreement Recommendation of Enforcement

Referral to Office of the Solicitor

A good relationship with the OFCCP helps!

Bringing The Compliance Review To A Close

Conciliation Agreement All remedies are not the same. Reporting requirement (12-24 months) Damages

• Back pay• Injunctive relief

o Offers to rejected applicantso Practice changes

National Pre-Award Registry

http://www.dol- esa.gov/preaward/pa_reg.html

Panel Discussion and Questions