OFCCP - The Good, The Bad and The Ugly
By Grace ContiMonica Brinson
Since Patricia Shiu took over the OFCCP Director's position in 2009, her office had made the news on a regular basis with their ever-changing agenda. Anyone involved in audits has seen a more aggressive stance and focus during recent compliance reviews.
Both the EEOC and the OFCCP are now working more closely together than ever before. Companies will see the blurring of lines between the OFCCP and the EEOC, and an overall more aggressive and collaborative effort among these agencies. In that regard, the OFCCP has already begun looking at individual complaints of pay disparity, harassment or other matters, which were previously "EEOC territory".
The good news is that Ms. Shiu will continue sending out the Corporate Scheduling Announcement Letter (CSAL) (scheduled to go out in a few months) providing federal contractors, with multi-establishments, advance notice of the number and location of its units that can expect to receive a desk audit letter in the near future. Although Ms. Shiu has agreed to continue the CSAL (at least for one more year), the previous cap of 25 establishments per corporation no longer exists, and OFCCP is not bound by the CSAL list.
Also, reports indicate that Ms. Shiu wants the OFCCP to discontinue inspection of employer's I-9s during on-site compliance evaluations as this has traditionally taken significant time during on-site audits.
The bad news is that audits have become much more aggressive and on-site audits will become the "norm," even if no issues are found during the initial compliance review ("desk audit"). PMP has already seen violations being issued for things that, in the past, would not have been problematic. Recent press releases coming from the OFCCP also show contractors becoming the subject of large settlements along with the potential "debarment" word being used.
Ugly? Ugly is how you will be describe your audit if you are not taking pro-active steps to assure that your plan is in full compliance to the changes that are occurring. Out-sourcing part or all of affirmative action planning is an important option to consider. Hiring a consultant or counsel who has their finger on the pulse of the OFCCP's ever-changing regulations and of each Region and District's review strategy is critical for a successful outcome should an audit occur. Too many companies have already experienced high financial settlements as a result of EEOC or OFCCP audits. Are you going to be next?