Today, the Office of Federal Contract and Compliance Programs (OFCCP), launched its "Class Member Locator," a website designed to help the agency "identify protected class members" that may have been affected by illegal workplace discrimination. The website provides "information to individuals" who believe that they may be part of an affected class and, in turn, subject to recovery for illegal workplace discrimination, in a chart summarizing:
- Contractor name
- Location
- Time Period of Alleged Violations
- Affected Group(s) (race/gender/ethnicity)
- Affected Job Title
Potential class members are invited to "scroll through the class member locator database and contact the OFCCP" if they believe they are part of the affected group. Importantly, the website also provides links to a brief OFCCP summary of the case and a redacted version of the contractor's conciliation agreement with the agency.
The OFCCP and contractors often enter into conciliation agreements to resolve perceived issues identified during an audit. Conciliation agreements do not mean that a contractor has violated OFCCP regulations or engaged in unlawful discrimination, and often include express statements from the contractor denying liability. Nonetheless, a conciliation agreement may include an agreement to pay lost wages, provide hiring opportunities, offer seniority credit, or provide other forms of relief to alleged victims of discrimination. It may also include agreements to provide training, engage in special recruitment efforts, or other affirmative action measures. In short, conciliation agreements can be lengthy documents containing sensitive company information that are almost always drafted by the OFCCP.
While some portions are redacted, information about the monetary settlement and other remedies listed in the conciliation agreements on the Class Member Locator website are not redacted. Similarly, the names and titles of contractor signatories to the conciliation agreements, who are often Human Resources professionals, are not redacted.
For Government contractors, the launch of the OFCCP's new website raises concerns about confidentiality, privacy, and disclosure of sensitive business information. While the OFCCP has a policy of publicizing settlements of alleged discrimination, they typically do so without disclosing the specific terms of the conciliation agreement absent a request made under the Freedom of Information Act.
The agency's tactic of attracting additional class members through the Class Member Locator website may also lead to additional investigations by the OFCCP if the agency converts an "inquiry" from a potential class member that may not fall squarely within the scope of the conciliation agreement into a "complaint" against the contractor. It also makes sensitive information readily available to the Plaintiffs' bar that may use the information to initiate private lawsuits against the contractor or unions that could use the information in organizing efforts.
Now more than ever, Government contractors entering into conciliation agreements should consult with legal counsel before finalizing a conciliation agreement. Such legal review becomes even more important now that the terms of any settlement may be splashed on the Agency's website.
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