First Impressions Matter in OFCCP Affirmative Action Audit

By Allen Smith, J.D. Jun 22, 2016
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A federal contractor’s initial response to an Office of Federal Contract Compliance Programs (OFCCP) audit scheduling letter is of paramount importance in the auditing process, according to Lynn Clements, director of regulatory affairs with Berkshire Associates Inc. in Columbia, Md., which prepares affirmative action plans for companies.

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Contractors have 30 days from the date of receipt of a scheduling letter to submit their response, noted Clements in a concurrent session at the Society for Human Resource Management 2016 Annual Conference & Exposition on June 20. That doesn’t mean 30 days from the date the letter was received by the right person in HR, she noted. Each scheduling letter has a postal tracking number, so visit the United States Postal Service’s website to confirm the date the OFCCP is using, she recommended.

If the contractor does not answer within 30 days, it may receive a notice to show cause, but ultimately the contractor gets another 30 days to respond to the show cause notice. This can get the audit off on the wrong foot by annoying the OFCCP compliance officer assigned to the case. But if a contractor needs the extra time and is not sure if it understands the affirmative action data that it is sending to the agency, it should take the extra time, Clements said. “It’s better to submit late and correctly than on time and stuck with bad data,” she explained.

After the data is submitted, the OFCCP will send the contractor follow-up data requests. These requests sometimes arrive immediately but other times don’t come for months. Onsite visits are rare but possible. The last step in the audit process is the notice of compliance or notice of violations. The OFCCP actually doesn’t use the phrase “notice of compliance” anymore; instead, it says “no apparent violations were found.” That’s an A+, she noted.

Violations may run the gamut from technical issues to more-serious ones, such as hiring or pay discrimination.

Game Plan

Before sending the OFCCP your workforce analytics and other data, anticipate what questions the agency might have about the data, Clements recommended.

If there is a difference between the percentage of women or minorities employed at a facility vs. the percentage of women or minorities in the available workforce, for example, the OFCCP might ask very pointed questions, she said. The agency also may expect specific steps to be taken, such as listing job openings with a women’s organization.

Know that the honeymoon period with revised requirements for recruiting more individuals with disabilities and veterans is over, Clements cautioned. The OFCCP is consistently asking for data on individuals with disabilities and veterans to see if employers are making good-faith efforts to have 7 percent of their employees be individuals with disabilities and 6.9 percent veterans.

Items 18 and 19

The scheduling letter contains a set list of questions. Items 18 and 19 are the most significant, she said. Item 18 currently asks for data by gender and individual race for applicants, hires, promotions and terminations. Contractors must make sure the data submission represents its employment activity in the best light and must understand the implications of what is being submitted, Clements said.

Item 19 concerns pay discrimination, which the OFCCP is newly interested in. Compensation discrimination is time-consuming for the government to analyze. The agency’s newfound interest in it is resulting in audits dragging on longer, she said.

But the big settlements typically arise from questioned hiring practices, which remain the agency’s “bread and butter,” Clements noted. The cases almost always involve entry-level jobs and do not just secure settlements for women and minorities; white individuals and males sometimes are settlement beneficiaries.

She noted the following recent settlements:
*$1.85 million for alleged systemic discrimination against 926 qualified women seeking entry-level warehouse laborer jobs.

*$330,000 for allegedly steering nearly 2,500 qualified male job applicants away from biscuit assembler jobs.

*$235,000 for allegedly favoring Hispanic applicants over black or white applicants.

The OFCCP is “following the numbers,” Clements said, so employers should make sure they know before they submit their data to the agency what story their organization’s numbers tell.

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.

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