Our attorneys regularly advise clients regarding federal and state government contract requirements, including affirmative action obligations, compliance standards, and procedures. We can advise you on issues of government contract coverage and defenses and on petitions for separate employer or separate facility exemptions, and we can help you develop effectively drafted affirmative action programs that meet the latest Office of Federal Contract Compliance Programs (OFCCP) regulations. In addition to defending you in the compliance review audit process, we can train your human resources personnel in advance of a desk or an on-site audit, and we can walk you through the audit process, including a corporate management ("glass ceiling") review. If an OFCCP audit uncovers discrepancies, we can represent you in the negotiation of conciliation agreements or in the defense of an enforcement action.
Our firm can:
- Determine whether your organization is a covered contractor or petition for a facility exemption
- Determine whether you have jurisdictional defenses (e.g., separate employer defense)
- Develop facility-based or functional affirmative action plans
- Train human resources managers and equal employment opportunity and staffing personnel regarding their compliance obligations in advance of an audit
- Provide on-site defense to an on-site or glass ceiling OFCCP audit or compensation review
- Negotiate effective conciliation agreements or defend OFCCP administrative enforcement actions
In addition, our practice has developed precompliance review checklists and audit procedures designed to focus on specific areas that the OFCCP may highlight during its on-site compliance review. Our precompliance audit includes application of checklists, suggested corrections, and manager and supervisory training sessions to present the proper orientation for the OFCCP review and interviews.
Do You Know What Your Obligations Are?
Approximately 23% of the total civilian work force is employed by federal government contractors or subcontractors that have an affirmative action mandate. Despite the wide reach of these mandates, many companies do not realize that they have affirmative action obligations until the day they receive a notice from the OFCCP scheduling a compliance review.
If your company has 50 or more employees and a federal government contract or subcontract to provide more than $50,000 a year in goods and services, then you are obligated to prepare annual affirmative action plans and to monitor closely your employment percentages of women and minorities compared to what is available in labor markets in which you operate. You must develop written affirmative action plans for each of your company's establishments and maintain detailed records about the demographics of your employees. In Fiscal Year 2006, the OFCCP conducted nearly 4,000 compliance evaluations and collected more than $51 million in conciliation settlements.
Some of our specific services include:
- Affirmative Action Program Development and Monitoring: Using specialized software and census data packages, we develop affirmative action plans customized for a client's workforce. In addition, we encourage clients to be self-sufficient in this area by training them to use the necessary software and data to develop their own plans and to monitor ongoing progress.
- Tailored Training Programs: We offer two affirmative action training programs. The first focuses on the "nuts and bolts" of compliance, including goal setting, labor market availability data, recordkeeping, and other legal and practical issues. The second training program is more strategic and focuses on preparation for both a desk audit or an on-site compliance review. Both training programs are offered on a flat-rate basis.
- Precompliance Audit Reviews: We have developed a menu of precompliance review checklists and audit procedures designed to bring an employer's attention to the areas the OFCCP may focus on during its on-site compliance review, and we offer help in addressing any problem areas.
- Compliance Review Defense: We defend clients in desk audit and on-site compliance reviews and in glass ceiling reviews. We have also successfully utilized the separate employer defense to E.O. 11246 jurisdiction and have pending several separate facility exemption requests.
- Compensation Analyses: A well-publicized recent development in affirmative action has been the OFCCP's new focus on discrepancies in compensation systems affecting minorities and women, as well as several major class action lawsuits alleging unfair compensation. Given the surge of litigation in this area, employers are particularly well-advised to be proactive in assessing their compliance.
Using an employer's existing computerized data, we can conduct a confidential analysis of its compensation systems and identify potential areas of concern. If an OFCCP audit focuses on compensation, we can prepare analyses and position statements to explain the legitimate, nondiscriminatory bases for the compensation system, and, if necessary, we can engage the statisticians and economists necessary to counter allegations of compensation discrimination.
For more information on our Labor and Employment Practice's OFCCP Practice, please contact OFCCP group leader and partner Robert J. Smith at 202.739.5065, or OFCCP team members: partner William E. Doyle Jr. at 202.739.5208 or OFCCP director of Affirmative Action Program Development and associate lawyer Marilynn L. Schuyler at 202.739.5103.