The Department of Labor's Office of Federal Contract
Compliance ("OFCCP") is charged with enforcing the
affirmative action and equal employment opportunity obligations
applicable to federal contractors. OFCCP intends to establish a
more "robust" enforcement scheme, issuing a Directive
this month that discontinues its active case management
("ACM") procedures previously used for contractor
compliance evaluations. OFCCP Director Patricia Shiu signed the
Directive, which was posted on the agency's website on December
8, 2010.
Established in 2003, the ACM procedures were originally designed to
streamline the OFCCP audit process by employing what became known
as an "abbreviated desk audit" of federal contractor
written affirmative action plans and personnel data. The
abbreviated desk audit looked for "indicators of systemic
discrimination;" i.e., discrimination involving 10 or more
individuals. Without evidence of such discrimination, the agency
normally closed its evaluation. The ACM also had built-in quality
control measures that required a full desk audit of every 25th
contractor, as well as a full onsite evaluation for every 50th
contractor scheduled for the abbreviated desk audit.
Director Shiu and other proponents of the recession have indicated
that the ACM procedures have limited the OFCCP's discretion in
performing its enforcement obligations. The text of the Directive
itself states that: "While ACM has identified a number of
systemic cases since its implementation, it has also caused OFCCP
to narrow the focus of its enforcement efforts and has eroded
OFCCP's enforcement authority." (241 DLR AA-1 12/2/10).
The agency has identified the need to gain greater flexibility to
combat, for example, individual cases of discrimination that may
have been overlooked with the ACM's focus on systemic cases of
10 or more.
The recession of the abbreviated desk audits creates a period of
uncertainly for federal contractors. OFCCP has promised more
"robust" enforcement, which may indeed mean more frequent
onsite evaluations and full desk audits. OFCCP seems intent on
focusing not only on systemic discrimination, but also on those
cases that may involve only a single individual. Contractor
compliance evaluations should become more focused under the new
administration - and that may lead to enhanced enforcement
activities.
Federal contractors that are accustomed to the technical compliance
aspects of the abbreviated desk audits are advised to focus on
their broader affirmative action and EEO responsibilities.
Companies should make sure that management is properly trained in
OFCCP law and compliance. In addition, internal annual reviews of
all aspects of OFCCP compliance will be more important than ever as
enforcement efforts increase in frequency and complexity.
Venable is available to assist with all OFCCP compliance and
enforcement issues.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.