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When it comes to a federal contractor’s desk audit submission to the Office of Federal Contract Compliance Programs (OFCCP), it’s better to be late and right than on time and wrong, according to Alissa Horvitz, an attorney with Littler Mendelson.
After a federal contractor receives an initial audit scheduling letter from the OFCCP, it has 30 days from receipt to prepare a desk audit submission, she noted during a Feb. 26 webcast.
The desk audit submission includes the federal contractor’s affirmative action plan as well as:
It is better to get extensions and provide a well-vetted strategic desk audit submission than to be on time and, on the first follow-up request from the OFCCP, start backing off the data, Horvitz observed. The more thought and strategy that goes in the initial submission, the less likely a lengthy audit will be because the desk audit submission is the contractor’s best opportunity to affect how the audit proceeds, she noted.
It takes time to prepare a thorough desk audit submission, which makes it even more important to “alert mailrooms now” to be on the lookout for scheduling letters from the OFCCP, to avoid the letters languishing in some in-box.
Make sure that submitted data is internally consistent, added Joshua Roffman, a Littler Mendelson attorney.
The data on hires, promotions and terminations should make sense as a whole and all add up. The data shouldn’t make it look like hires disappeared. The contractor needs to be able to show how everyone entered and left the workforce, and to do any research needed “to know how they fell out of the workforce,” Roffman said. Before submitting data to the OFCCP, it’s important to “ask more detailed information” to make sure that the contractor has the answers to these questions because it can “start to lose credibility quickly if the data keeps changing.”
Moreover, goal-setting and the affirmative action plan are “meaningless unless there’s good and accurate data,” he remarked.
The OFCCP typically looks at data in comparison with a snapshot at the beginning of the year. But changes in the workforce since then may lead to a more nuanced explanation of the data, Roffman observed.
Beware of holes in the data, though. A contractor that uses a staffing agency should “be prepared in an audit to produce a letter sent to a staffing agency putting it on notice about your expectations to maintain records for you” and show the procedures and processes you have to get the information, plus how often you get it, he recommended.
Post-it Notes Removed, Lost
If there is any doubt about whether someone should be included as an applicant, the OFCCP may include that person, so make sure record-keeping is in order, Horvitz added. She recalled spending much time on the audit of one contractor that had put Post-it notes on applications to record information about scheduled interviews. The contractor was afraid to write on the applications.
When applicants were no-shows, this information was put on the Post-it notes, but all these notes were pulled off when the applications were filed, so the no-shows ended up in the applicant tracking system.
Systemic discrimination remains “by far the most important part of a desktop audit” because that’s where the OFCCP can get the largest awards, Roffman reflected. If any protected job group shows a statistically significant adverse impact for women or minorities in selections, promotions or terminations, the OFCCP typically will begin a more thorough investigation.
When looking at compensation data, the OFCCP has used a “tiered approach,” which includes:
With the so-called “trigger test,” the OFCCP has looked for 2 percent differences in average compensation by the contractor’s pay divisions. Then, it assesses whether at least 30 percent of women or minorities were disfavored within their pay divisions and whether that percentage was three times the percentage of men or non-minorities who were disfavored within their pay divisions. Contractors are given considerable leeway in deciding what “pay divisions” they use in the desk audit submission.
Even though the OFCCP’s focus in recent years has been on systemic discrimination and the Internet applicant rule, the OFCCP is starting to examine contractors’ outreach efforts more closely, Roffman added. If there hasn’t been outreach, there may be a technical violation, in addition to a prolonged investigation.
The agency is particularly scrutinizing whether contractors have conducted outreach to people with disabilities and veterans, Horvitz said. Contractors should have records of sending letters to organizations as part of their outreach efforts. “If you don’t have these, you’ll want to start reaching out as soon as you can in 2007,” she recommended.
Allen Smith, J.D., is SHRM’s manager of workplace law content.
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