First, they are going to begin conducting more on-site investigations. Is this a result of the Frito-Lay decision that limited the reach of the OFCCP during the desk audit? Maybe, but in general they can get a lot more access to information and your employees once they come onsite. To assist in the more time consuming process of onsite investigations the OFCCP has hired nearly 200 compliance officers in the past year. However one thing that was taken off their plate for the onsite investigation was the discontinuation of I-9 inspections. It was a time consuming process in which the OFCCP had no enforcement authority.
There has been a clear indication of the increased enforcement by the OFCCP through recent complaints and settlements. In the complaint against Tyson for systemic discrimination against women in its Joslin, IL plant, the OFCCP sought cancellation and debarment of federal contracts. While the final settlement did not include those terms it gives a clear message to the contractor community that the OFCCP is stepping up their game.
If you are a multi-establishment employer the OFCCP will be looking at current and previous audits across regions. They will be either pursuing company-wide complaints against multiple establishments under audit if a pattern is discovered or taking more severe action against the contractor where an historical pattern is found. Evidence of this came earlier this month with the announcement of the complaint against Nash Finch Co. The OFCCP is petitioning to have Nash Finch existing contracts cancelled and debar them from any future contracts. “Over the past decade, OFCCP settled discrimination cases with Nash Finch facilities in Norfolk, Va., St. Cloud, Minn., and Omaha, Neb.” OFCCP Director Patricia A. Shi stated. "Nash Finch has demonstrated an unfortunate pattern and practice of hiring discrimination, and the American taxpayers should not have to bankroll this company's bad behavior anymore."
The second priority for the OFCCP is its regulatory agenda and numerous changes that we will see in the next couple years. With regard to veterans there has been a Notice of Proposed Rule Making that would strengthen the affirmative action requirements for Federal contractors and subcontractors to require substantive analyses of recruitment and placement actions taken under VEVRAA and use numerical targets to measure the effectiveness of affirmative action efforts. The NPRM would also make revisions to recordkeeping requirements.
The OFCCP also sought comments from the public on how to strengthen affirmative action requirements for people with disabilities in their Advance Notice of Proposed Rule Making (ANPRM). The ANPRM sought comments in the areas of effective employment practices in recruiting, hiring, advancing and retaining qualified individuals with disabilities; data available that could be used to establish hiring goals and conduct utilization analyses of individuals with disabilities; and how linkage agreements between federal contractors and organizations that focus on the employment of qualified individuals with disabilities can be strengthened to increase effectiveness.
Pay equity has been a hot topic this past month since the Senate failed to pass the Paycheck Fairness Act which would have reinstated the Equal Opportunity Survey. Don’t think that is the only tool or plan the OFCCP has to continue the fight for pay equity. While reinstating the EO Survey in the Paycheck Fairness Act was ideal, they will continue to develop a tool to collect and analyze compensation data. One way they paved the new path for compensation analysis is to clear the old one by publishing a Notice of Proposed Rescission on the 2006 compensation analysis standards and guidelines.
OFCCP is not only getting more aggressive in enforcement during an audit but also changing the way in which an audit is conducted. Early this month they rescinded the Active Case Management (ACM) process used for conducting compliance evaluations. It was created to concentrate resources on audits with indicators of systemic discrimination (i.e. 10 or more potential victims). Full desk audits only occurred every 25th review and onsite reviews only every 50th. OFCCP felt that it caused them to “narrow the focus of its enforcement efforts and has eroded OFCCP's enforcement authority”. Federal contractors need to be ready for more in-depth desk audits not limited to systemic discrimination and more on-site audits.
The final priority of the OFCCP to conduct more individual complaints. This is a complete 180° from its normal course of business. OFCCP found that individual complaints more than double the chance of a discrimination finding versus the typical audit scheduling process. So now the OFCCP is hitting the street and connecting with civil, worker’s rights and advocacy groups to get its name out there and drum up some business.
So now is the time to review your Affirmative Action Programs (AAP). Evaluate your outreach to veterans and people with disabilities, analyze compensation, look beyond the location and solve issues company-wide and if you see a problem fix it before the OFCCP comes calling.