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

Transcription

1 The New OFCCP Compliance Review: What To Expect When Scheduled For A Review In 2012 Presented by Elizabeth A. Schallop Call With comments by Lisa Barnum, Marian Enriquez and Rebecca Rand steptoe.com February 21, 2012

2 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

3 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

4 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.)

5 Evaluation Process Exceptions/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

6 The Desk Audit Letter provides notice of desk audit Request submittal of: AAPs (EO and VEVRAA/Section 503) Personnel activity data (applicants/hires, promotions, terminations) Compensation data (Item 11) EEO-1 reports (and VETS-100 reports)

7 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?

8 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?

9 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

10 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

11 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

12 Panel Discussion and Questions

13 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.

14 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.

15 Panel Discussion and Questions

16 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.

17 What Is An On-site Review? Review Employment Decisions Hiring decisions Promotion choices Termination decisions and reductions in force Pay rate determinations Personnel files

18 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

19 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

20 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

21 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

22 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.

23 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.

24 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!

25 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 applicants o Practice changes

26 National Pre-Award Registry esa.gov/preaward/pa_reg.html

27 Panel Discussion and Questions