Prepare to Ace the OFCCP’s Audit of Your Affirmative Action Program | DCR Workforce Blog

Prepare to Ace the OFCCP’s Audit of Your Affirmative Action Program

AuditApart from investigating complaints, the Office of Federal and Contract Compliance Program (OFCCP) within the Department of Labor selects about 2,000 to 4,000 contractor and subcontractor establishments for compliance audits each fiscal year. The government imposes stricter affirmative action standards on government contractors than on the private sector. The purpose of the OFCCP audit is to ensure that these standards are met.

  • The federal contractor must maintain nondiscriminatory practices governing job placement, employee training, promotion, compensation, and worker termination.
  • The contractor must demonstrate good faith efforts to meet its affirmative action requirements and to ensure applicants and employees have equal opportunity without regard to race, color, religion, sex, national origin, disability, or status as a protected veteran.
  • There can be no barriers to advancement for qualified minorities, women, persons with disabilities, and protected veterans.
  • The contractor must demonstrate compliance through the creation and maintenance of documentation and reports. OFCCP compares a company’s data to the utilization goals set by statute to evaluate its good faith efforts.

All federal contractors and subcontractors with 50 or more employees and a single contract of $50,000 or more must annually write an affirmative action plan covering women and minorities for each of their establishments. Upon receiving a notification from the OFCCP scheduling an audit, a company is given a 30 day window in which to gather all supporting documentation related to adherence to affirmative action obligations. While analyzing the data in a desk audit, the OFCCP may ask for additional information and may even wish to conduct an on-site audit.

  • If cleared, companies are not open to another audit for the next two years.
  • If any potentially discriminatory practices are found, the OFCCP may conduct further analyses of processes and evaluate additional compensation data, personnel files and business policies. They may also interview the company’s hiring team and other staff members.
    • If the on-site interview finds the company compliant with employment opportunity guidelines, the issue will be closed.
    • If discrimination is proven, the OFCCP will specify required remedies. These could range from further monitoring and reporting on a periodic basis, monetary remedies, or as a drastic measure, barring the contractor from any further federal contracting work. If the conciliation is successful, a “conciliation agreement” will be drafted and signed by the contractor. The agreement is enforceable. If conciliation efforts fail, an enforcement action against the contractor could be pursued through an administrative process or in federal court.

Considering that the OFCCP collected $11.9 million in 2014 in recovery of back pay, federal contractors bound by the need to showcase their Affirmative Action plans need to do more than just implementing them. To effectively face an OFCCP audit, a federal contractor will have to also document their good faith actions in implementing their affirmative action plan and achieving its professed objectives. These could be:

  • Documenting their active involvement with State career sites when posting jobs.
  • Keeping a record of the efforts made to ensure that job vacancy announcements are accessed by State employment agencies, and by qualified applicants representing minorities, veterans, women and people with disabilities. Records demonstrating how the applications of individuals with minority or veteran status were disposed are also essential.
  • Maintaining hiring data to meet reporting regulations, and keeping it available for submission in case of an audit.
  • Tracking the number of men, women, and minorities per job title at the department level to demonstrate staffing patterns across and within the organization.
  • Listing the job groups, and jobs with similar functions, their pay ranges and opportunities.
  • Determining minority, veteran and female availability, per job group, from the feeder job groups within the organization and considering them for a promotion before seeking applicants from outside sources.
  • Making sure that EEO-1 reports which identify the race and gender composition of EEO job groups are in tune with avowed Affirmative Action objectives.
  • Analyzing data from one’s own process steps and employment actions for adverse impact on women and minorities. Nothing showcases a contractor’s good faith better than a plan from previous years, with any shortcomings in performance duly noted for correction in the subsequent plans.

Remember that poor recordkeeping comes right behind discrimination in hiring and compensation in every instance of non-compliance penalized by the OFCCP.

The content on this blog is for informational purposes only and cannot be construed as specific legal advice or as a substitute for competent legal advice. They reflect the opinions of DCR Workforce and may not reflect the opinions of any individual attorney. Do contact an attorney for advice specific to your issue or problem.
Lalita is a people/project manager with extensive experience in operations, HCM and training and development across industries like banking, education, business consulting, BPO and information technology. She believes in a dynamic approach to life and learning as change is the only constant.