The OFCCP Audit and Enforcement Survival Guide
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Transcript The OFCCP Audit and Enforcement Survival Guide
Always be Prepared:
The OFCCP Audit and Enforcement
Survival Guide
Kris D. Meade
Partner
Crowell & Moring LLP
Washington, DC
[email protected]
202.624.2854
Jody Shipper
Executive Director
Office of Equity and Diversity
University of Southern California
[email protected]
213.740.5086
Introduction
Agenda
Understanding the OFCCP and Its Agenda
Key Regulatory Developments
Key Enforcement Priorities – Hot Button Issues
Preparing for an Audit – Practical Tips
Surviving an Audit – Phase-by-phase Tips
Concluding an Audit – Potential Resolutions
Understanding the
OFCCP and Its Agenda
OFCCP – Overview and Agenda
Organizational Structure and Mission
Within Department of Labor
Enforces Executive Order 11246, the Vietnam-Era
Veterans Readjustment Assistance Act (VEVRAA),
and Section 503 of the Rehabilitation Act (Section
503)
Non-discrimination – “thou shall not”
Affirmative action – “thou shall”
National Office, Regional Offices, District Offices
Decentralized in practice
OFCCP – Overview and Agenda
Jurisdiction
Federal contractors and subcontractors – not grant
recipients
“Subcontractor” – two prongs
Enforcement Tools
Compliance Reviews or “Audits”
Complaint Investigations
Remedies
No civil fines or criminal penalties
Standard Title VII-like remedies – back pay, reinstatement,
instatement, pay adjustments
Debarment – ultimate sanction – rarely used
OFCCP – Overview and Agenda
Primary Obligations of Contractors and
Subcontractors
Prepare Affirmative Action Plans (AAPs) - Annually
Engage in outreach
Flow down obligations to subcontractors
Regulatory Developments
Overhaul of VEVRAA and Section 503
Regulations
Proposed Rules – 2011 – Substantial Increase in
Contractors’ Obligations
Contractor Community Response – assessment of
cost
Final Rules – announced August 27, 2013
Effective Date of Final Rule – March 22, 2014
“Phased In” compliance for AAPs
If AAP in place before March 22, 2014, no changes to AAP
in 2014
Significant systems and process changes prior to March
2014
Regulatory Developments
Key Changes - Section 503
7% Utilization Goal – every job group
Periodic Solicitation of Disabled Status
All Employees
All “Applicants”
Documentation of Outreach Efforts
Collection and Assessment of Disabled Applicant
and Hire Data
New Subcontract “Flow Down” Language
Three-year Record-Keeping Requirement
Expanded Audit Scope
Regulatory Developments
Key Changes – VEVRAA
Solicitation of Veterans Status
Annual Hiring “Benchmarks” – workforce as a
whole
8% default
Set own
Documentation of Outreach Efforts
Collection of Veteran Applicant and Hire Data
New Subcontract “Flow Down” Language
Three-year Record-Keeping Requirement
Expanded Audit Scope
Regulatory Developments
Challenging Implementation Issues
Extent of Effort to Achieve 7% Goal
8% Benchmark v. 5-Factor Analysis
How to Document Audit and Reporting System
Reasonable Accommodation Guidelines – Adopt?
Other
Regulatory and Enforcement Agenda
Compensation Guidelines – Directive 307
issued 2013
Reflects importance of compensation issues to
OFCCP
Rescinds Bush-era guidance – regressions and
anecdotal evidence required
Ad-hoc, case-by-case approach
Statistical, non-statistical and anecdotal evidence
Pay analysis groups – broader than job title
Investigate at systemic, unit, and individual level
Regulatory and Enforcement Agenda
United Space Alliance – right to individualized
compensation data
2009 – scheduling letter issues; company provides
aggregate compensation data – per item 11
OFCCP conducts “threshold test” – no indicators of
discrimination
OFCCP conducts additional tests – “pattern test” –
claims disparity, seeks individualized data
Company refuses
ALJ – orders company to provide data
District Court – 2011 – affirms based on substantial
deference standard
Recent Significant Decisions
Frito-Lay – timeframe for investigation expanded
Scheduling letter dated July 13, 2007
Company provides activity data for 2005, 2006 and part of 2007
OFCCP claims data show “statistically significant
disparity” – requests additional data - 2008 and 2009
Cites variance in female hiring rates – 3.26 standard deviations
Company refuses to produce – beyond date of
scheduling letter
Recent Significant Decisions
Frito-Lay
ALJ Decision – OFCCP precluded from seeking 2008-09
data; based on FCCM
ARB reverses ALJ
“OFCCP clearly has discretion to request AAP data covering
activity occurring after the scheduling letter”
OFCCP’s “impetus” in seeking additional data “reasonable”
2013 – Frito-Lay files challenge in federal court in Texas;
OFCCP’s Motion to Dismiss pending
Hot Button Issues
OFCCP – Hot Button Issues
Priority Issues – those that yield monetary
recoveries
Compensation – lack of Agency experience with
higher education
Personnel selection decisions – hires, promotions,
and terminations
Applicant tracking and selection processes: Making
sure your records talk, so your employees don’t
have to be interviewed
Hot Button Issue: Compensation
OFCCP’s limited understanding of factors
common in higher education for determining
differences in compensation can create traps
for institutions
- Retention
- Reputation
- Differences in status of various publications
- Differences in funding sources
Other Traps Easily Exploited by
OFCCP
Personnel Selection and Applicant Tracking:
- Who is an “applicant” in a faculty search?
- Does your faculty keep records of all searches?
- Is everyone a Target of Opportunity Hire?
OFCCP – Hot Button Issues
Outreach – Veterans and Individuals With
Disabilities
How much is sufficient?
Record keeping?
Do results matter, or just the effort?
Side note: When asking for disability status, do
you put yourself on notice of need to discuss
reasonable accommodations?
OFCCP – Hot Button Issues
Internet applicants, tracking and testing
Record keeping
LinkedIn and other common job search sites
Pre-employment testing
Background checks
Practical Tips to
Prepare for an Audit
Preparations for Audit – Practical Tips
Role of General Counsel’s Office
Often not intimately involved prior to audit
Recommendation
Become more involved in day-to-day program
Treat audit enforcement action and proactively manage
response
Initial decisions may include whether to ask for delay
Review of past plan
Preparations for Audit – Practical Tips
Technical Review of AAP and Related Policies
Compliance with regulations
Potential exclusions
Temporary employees
Student workers
No definition of “employee”
Preparations for Audit – Practical Tips
AAP Structure
Multiple establishments?
Employment Tests
Use?
Locally validated?
Monitoring for Adverse Impact
Quarterly – applicants, hires, promotions, and
terminations
Steps to address areas of adverse impact
Preparations for Audit – Practical Tips
Self-identification – race and gender (currently)
Different obligations for applicants and employees
“Decline to state” – gender vs. race
Approaches
Visual identification if no self-identification?
Preparations for Audit – Practical Tips
Record-keeping
Two years – “personnel records”
Tracking down “missing” records
Interview notes
How capture?
What level of detail?
Dispositions of candidates
The importance of consistency
Preparations for Audit – Practical Tips
Mock Audits
Particularly useful if not audited in last five years
Privilege issues
Areas of focus – parallel OFCCP areas of interest
Interview managers; examine data
Preparations for Audit – Practical Tips
Compensation Analyses
Pay equity studies – academic side
Routine practice on many campuses; transparency
Regressions – privilege issues again
Difficulty identifying and quantifying factors that impact
pay – often not in data form
Practical Steps:
Each Phase of Audit
Practical Steps – Each Phase of Audit
Receipt of “Pre-Scheduling” Letter
Assess readiness – areas of strength and
vulnerabilities
AAP review
Understand your numbers – utilization and adverse impact
Compensation analysis – potential pay adjustments
Assemble audit response team
Interdisciplinary – HR/Affirmative
Action/Compensation/Legal
Designate leads
Develop preliminary themes
Educate your client
Practical Steps – Each Phase of Audit
Receipt of Scheduling Letter
Data required
More than six months into AAP year? If so, analyze data
for AAP year-to-date
Deadline for response – 30 days (extensions)
Pull compensation data – analyze, assess (and adjust?)
Format of response – varying approaches
Explain areas of apparent discrepancy – particularly on
compensation
Confidential/Proprietary Information – password protect
Educate your client (again) and OFCCP
Practical Steps – Each Phase of Audit
Desk Audit Phase
Timeline – first contact can be within days or may
not be for months
Additional data and document requests
Unreasonable deadlines – “within three days”
Impact of sequestration – travel limits – more done at
desk audit
Accommodations, lists of employees who have taken
leave and whether they returned
Charges filed with agencies and any settlements –
“employee complaints”
Bate number all documents
Practical Steps – Each Phase of Audit
Desk Audit Phase
Develop Rapport with OFCCP Compliance Officer
Legal v. HR/affirmative action as point of contact
In-house counsel and outside counsel
Professional, respectful tone – even if not returned
Know when to push back and when to escalate
Silence – what then?
Low bar for moving from Desk Audit to On-Site
Review
Practical Steps – Each Phase of Audit
On-Site Phase
OFCCP team
Large numbers
Many inexperienced
Opening conference
OFCCP will present
Be proactive – stress themes; inform about campus
Document reviews
Track all documents provided – if originals
Offer to provide as available
Practical Steps – Each Phase of Audit
On Site Review
Preparation – the big and the small
Legal
Media relations
Logistics – where and when
Parking?
Coffee and cookies – how comfortable do you want them
to be?
Ask around – colleagues at other institutions may have
direct experiences with same team members
Practical Steps – Each Phase of Audit
On-Site Phase
Logistics
Offices away from other employees and away from HR
Suggest places for lunch – not campus cafeteria
Interviews – key areas and key decision-makers
HR personnel – recruiting and compensation functions
Management personnel
Preparing staff and senior administrators
Brief on OFCCP and its mission
Ensure knowledge of AAP and compliance posture –
themes
Deposition-like preparation
Practical Steps – Each Phase of Audit
On-Site Phase
Preparing non-management employees
No right to be present or have legal counsel present
Explain OFCCP and mission
Can inform of right to ask to have someone else present
Interview statements prepared by OFCCP
Often vague or incorrect
To correct or not correct?
To sign or not to sign?
Copies
Who has control over the order of interviews?
Practical Steps – Each Phase of Audit
Audit Closure
Compliance – formal and informal closures
Conciliation Agreement
Negotiation – some parts
Reporting period – almost always – 6 months to two years
Press release if monetary remedies
Not negotiable
Often misleading
Can prompt private actions
Practical Steps – Each Phase of Audit
Audit Closure
Enforcement Proceedings – if unable or unwilling to
resolve
Solicitor’s office, not within OFCCP
Administrative litigation
Before ALJ
Some discovery
Appeal to Administrative Review Board of DOL
Appeal ARB decision to federal courts
Opportunities to settle
QUESTIONS
Always be Prepared:
The OFCCP Audit and Enforcement
Survival Guide
Kris D. Meade
Partner
Crowell & Moring LLP
Washington, DC
[email protected]
202.624.2854
Jody Shipper
Executive Director
Office of Equity and Diversity
University of Southern California
[email protected]
213.740.5086