Preparing For And Surviving An OFCCP Compliance Review

Author:Ms Cheryl Behymer, Celia Joseph and Richele Taylor
Profession:Fisher & Phillips LLP

The Office of Federal Contract Compliance Programs (OFCCP) is the U.S. Labor Department's enforcement agency for federal contractors subject to affirmative action requirements. In general, these requirements are imposed by Executive Order 11246, Section 503 of the Rehabilitation Act of 1973, and the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as well as the Jobs for Veterans Act.

Employers with 50 or more employees and a federal contract or subcontract in the amount of $50,000 or more, as well as certain financial institutions, are required to prepare written affirmative action programs on an annual basis. These affirmative action programs (AAPs) include statistical analyses of the employer's workforce demographics, by race and gender. In addition, the OFCCP has proposed regulations that, if passed, would require similar statistical analyses of the employer's veterans and individuals with disabilities demographics in its workforce.

Recently, the OFCCP has increased its enforcement activities and more contractors have been subjected to OFCCP's compliance reviews. Here are some things you should know.

How Do I Learn I'm Being Audited?

Most audits begin with a scheduling letter detailing the information the contractor must provide within 30 days of receipt of the letter. The contractor should immediately establish a response team and create its own internal deadlines. Prior to submitting any documentation to the OFCCP, you should carefully review all statistical analyses; identify and correct, if possible, any areas of potential adverse impact; compare similarly situated employees for compensation purposes; and ensure that the data you provide is accurate and consistent in every area.

Typically, the OFCCP requests additional detailed compensation data for all or some of your employees. With this in mind, it's important that you have identified which employees are similarly situated to each other.

Can The OFCCP Come Onsite?

Yes, and OFCCP's onsite reviews have increased dramatically recently. Even absent any indicators of discrimination, OFCCP has stated that it will conduct a random onsite audit, which includes employee interviews, for every one out of 25 compliance reviews...

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