Audit Finds OFCCP’s Enforcement and Outreach Are Lacking

Employers report compliance assistance outreach has been reduced

By Roy Maurer Sep 29, 2016
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A government watchdog judged the Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) to have a "weak" compliance evaluation selection process and lacking enforcement resources.

The Government Accountability Office (GAO) review also found that the agency's outreach and compliance assistance for organizations with federal contracts have declined since 2012, and many in the regulated community feel guidance should be clearer.

The OFCCP ensures that about 200,000 federal contractor employers take steps to provide equal employment opportunities for protected classes of workers and avoid employment discrimination.

Republicans on the House Committee on Education and the Workforce asked the GAO to review OFCCP enforcement and compliance assistance practices and results.

The agency's 615-member staff primarily focuses on enforcement. The OFCCP reviews a contractor's affirmative action program (AAP), hiring, promotion, compensation, termination and other employment practices. The OFCCP selects employers for audits by developing a scheduling list using federal acquisition and procurement databases, EEO-1 reports, Dun & Bradstreet data and U.S. Census Bureau data. But since only a tiny fraction of federal contractors can be evaluated each year, the agency also carries out compliance assistance and outreach efforts.

Flaws in the System

The GAO found that the OFCCP evaluates only about 2 percent of federal contractors each year. Since 2010, about 78 percent of evaluations found no violations and about 2 percent had discrimination findings. The remainder were categorized as nondiscriminatory technical violations. 

While the vast majority of audits identify no violations, the GAO said it "does not have reasonable assurance that [OFCCP] is focusing its compliance efforts on those contractors with the greatest risk of noncompliance."

Some of the reasons for this include:

  • The contractor-selection process does not produce a "generalizable sample" of contractors for evaluation, meaning the sample doesn't represent the results that would be obtained from the entire population from which the sample was drawn. "As a result, OFCCP is not able to draw conclusions about noncompliance risk in the overall federal contractor population," said Cindy Brown Barnes, director for education, workforce, and income security issues at the GAO.
  • The agency relies significantly on unchecked compliance. There is no process for ensuring that all federal contractors have developed an AAP within 120 days of the commencement of the contract, or updated it annually. In 2015, close to 85 percent of contractors did not submit their AAP within 30 days of receiving a scheduling letter initiating an audit, and OFCCP officials said that it was not unusual for establishments to request an extension.

"Some contractors have already seen requests for extensions to submit their AAPs in response to scheduling letters shortened or outright denied," said Laura Mitchell, a principal in the Denver office of workplace law firm Jackson Lewis. "It is likely this practice will continue, and even intensify, in the wake of this observation from the GAO."

Brown Barnes said that allowing contractors to submit their AAPs electronically or certify that they have completed annual updates could provide the OFCCP "reasonable assurance that contractors are complying with this requirement."

Compliance Outreach Down

According to the GAO report, the OFCCP conducted a wide range of outreach events prior to 2014 that included presenting to industry groups, participating in job fairs, reaching out to workers and translating OFCCP guidance into various languages.

The agency's outreach and compliance assistance activities for contractors, protected workers and industry groups decreased more than 80 percent from 2012 to 2014 as the agency refocused its activities on enforcement. "Specifically, in 2014, OFCCP made a strategic decision to further advance effective enforcement and regulatory reform as its highest priorities and outreach as a lower priority …  as part of a multi-year effort to restore OFCCP as a premier civil rights agency," the GAO found. Budget constraints are an additional factor contributing to the decrease in outreach events.

Employers told GAO they do not feel comfortable contacting OFCCP for assistance, fearing that doing so would make them a target for future enforcement actions. Instead, employers said, they tend to hire third-party support to help them comply with nondiscrimination and affirmative action requirements.

The OFCCP responded that there are no ramifications for contacting the agency to ask questions and that no compliance evaluation had ever been initiated as a result of a call or written inquiry.

In addition, contractors told GAO that they generally found OFCCP guidance to be helpful, but said the guidance could be clearer to help them understand their equal employment obligations.

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