How to Prepare for an OFCCP Compliance Evaluation
The Office of Federal Contract Compliance Programs (OFCCP) is part of the Employment Standards Administration (ESA) of the Department of Labor (DOL). OFCCP compliance ensures federal contractors and subcontractors are in line with non-discrimination, equal employment opportunity (EEO), and affirmative action laws and regulations. The office schedules OFCCP compliance evaluations twice yearly, with regional OFCCP offices then working their way through them.
In the sections below, we’ll review how these compliance evaluations work, what they’re used for, and most importantly how to prepare for them.
OFCCP Compliance Evaluations
The OFCCP checks EEO compliance and affirmative action practices via random evaluations and by investigating individual complaints of misconduct
The evaluations determine whether federal contractors:
- utilize nondiscriminatory hiring and equal employment practices
- approach EEO with affirmative actions for all applicants, including veterans and people with disabilities
- follow other guidelines for all employment decisions
The OFCCP uses the Federal Contractor Selection System (FCSS), a mathematical model that helps select contractors who are most likely in violation of affirmative action laws. Another good contractor resource is the Federal Contractor Compliance Manual (FCCM), available at the OFCCP website above. The eight-chapter manual is designed to provide background and guidance on desk audits, on-site reviews, complaint investigations, and other standards and procedures.
The OFCCP Compliance Evaluation Process
Since 2011, the OFCCP has used a compliance evaluation program called the Active Case Evaluation (ACE) procedure, auditing a greater scope of documents and records than in the past. A traditional ACE compliance evaluation includes one or more of the following:
- full compliance review
- compliance checks
- off-site review of records
- focused review
- pre-award compliance evaluation
Full Compliance Review
A Full Compliance Review consists of three stages:
1. The Desk Audit
Always required under ACE, this procedure begins with a scheduling letter requesting information from the contractor.
First, you should confirm whether you have government contracts that qualify you for coverage under the ACE, and advise the OFCCP, who have the burden of proof. Contractors aren’t obligated to provide any information until coverage is confirmed; after that, you have 30 days to provide the info.
Before submitting any documents, conduct your own internal audit to verify you’re OFCCP compliant.
An OFCCP equal opportunity specialist (EOS) then has 60 days to review your Affirmative Action Plan (AAP) and supporting documents (off-site) to determine whether you’re in compliance—whether you’ve made all reasonable efforts to develop an acceptable AAP.
If your AAP is seriously deficient, the OFCCP issues a notice to show cause and the evaluation is suspended. Otherwise, the AAP review usually covers at least one full year.
During the acceptability phase, the specialist first considers:
- whether your workforce analysis complies with technical requirements.
- areas where minorities or women may be concentrated or underrepresented.
- your job groups, availability analysis, goals, and your efforts to meet those goals.
- whether your action plan satisfies all federal affirmative action regulations.
Then during Impact Ratio Analysis, the OFCCP reviews your personnel practices (hiring, promotion, termination) to determine whether there’s adverse impact on women or minorities.
Finally, the EOS issues a standard compliance review report summarizing its analyses, findings, and conclusions. This concludes the Desk Audit.
Next comes the Onsite Review, which takes place at your establishment. The OFCCP investigates unresolved Desk Audit issues and verifies execution of your AAP. They will also look for potential discrimination in personnel and employment policies, employment documents, and will interview employees, supervisors, managers, and hiring officials. Onsite reviews are scheduled on a random rotating basis, even if everything checks out in the Desk Audit.
There are five basic parts to the onsite review:
- the entrance conference (between the EOS and a contractor representative)
- a facility tour
- document review
- the exit conference
The EOS may also request to take documents for Offsite Analysis.
2. Compliance Check
Another standard method of evaluation is the OFCCP compliance check: a simple review of records that begins with another scheduling letter and ends with a closure letter. For this type of evaluation, you should prepare by doing an internal audit on your records and confirming they’re maintained properly.
3. Focused Review
This is an onsite review of one or more of your employment practices targeting selected issues. Two major examples are before you’re awarded certain contracts, and thresholds above a certain number of employees.
- Pre-Award Compliance Evaluation: Any prospective contractor entering a contract of $10 million or more dollars, and any first-tier subcontractors with subcontracts of the same amount, must be given an evaluation. This can be skipped if the OFFCP has found you or your subcontractor in compliance within the past two years.
- Corporate Management Compliance Evaluations (CMCE): This is a more focused evaluation of equal opportunity for midlevel and senior managers. CMCE is designed to make sure qualified minorities, women, persons with disabilities, and protected veterans face no artificial barriers to advancement. Supply and service contractors with 4,000 or more employees and more than one reporting subordinate establishment are included on the CMCE List.
Beyond the scheduled and unscheduled audits above, OFCCP also investigates complaints by employees, former employees, applicants or third parties alleging specific violations. The circumstances of these audits vary with the factual circumstances of each complaint.
- Complaints of specific violations under Executive Order 11246 must be filed within 180 days of the incident, unless there’s good cause for extension (as investigated and confirmed by EEOC).
- Complaints under the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) or Section 503 of the Rehabilitation Act must be filed within 300 days of the alleged violation, unless a good cause for extension is found.
A complaint investigation includes:
- interview with the complainant
- an onsite investigation, like the onsite review in the compliance evaluations above
- a third-party medical opinion, if applicable
You can prepare for a complaint investigation by making sure all records and procedures related to the employment of the plaintiff are available, properly maintained, and make it easy to settle the case.
Investigations are typically completed within 60 days, and a settlement can be reached at any point in the process. If you are found not to be OFCCP compliant, the DOL will invite you to use alternative dispute-resolution means, such as conciliation, to close out the complaint.
Now, Put the Plan Into Action
You’ve learned about the parts of the OFCCP compliance process and how to prepare for audits, so the next time you find you’re covered by one or more of the rules set forth by the DOL, you’ll be ready for a successful evaluation. For more tips and plans to make the most of your business, look no further than Monster.
Legal Disclaimer: None of the information provided herein constitutes legal advice on behalf of Monster.