Compliance Officers are Requesting Records on Other Personnel Actions

By Marife Ramos

One of the recent atypical activities from the OFCCP is the compliance officer conducting detailed data reconciliation. That is, compliance officers “doing the math.” They look at the contractor’s previous year’s employee representation, add/subtract the transactions, and “expect” the numbers to match the current employee representation. (Please see blog dated February 5, 2010 for various other OFCCP requests and activities that make the Federal contracting community cringe).
When a compliance officer attempts to reconcile numbers based solely on the information contained in the AAP, more often than not, the starting and completing numbers will not add up. This is due to the fact that the AAP reports do not account for transfers, demotions, job eliminations, and/or acquisitions (and other personnel activities) that occurred in a job group. In previous audits, contractors were simply asked to explain the discrepancies. A brief explanation of these other activities used to be enough but not anymore. Contractors are now being asked to provide the actual data that will, so to speak, balance the equation. The question now becomes: “Since transfer and/or demotion data are not part of the AAP (nor in the itemized listing of the audit letter), can contractors argue against providing such data sets?”

Let’s take a look at what the regulations [CFR 60-2.17(b)] states:
"The contractor must perform in-depth analyses of its total employment process to determine whether and where impediments to equal employment opportunity exist. At a minimum the contractor must evaluate…(2) personnel activity (applicant flow, hires, terminations, promotions, and other personnel actions [emphasis added]) to determine whether there are selection disparities…"

Consider these two things: 1) The audit letter only requests data for applicants, hires, promotions, and terminations and there is no mention of other personnel activities; however, 2) the regulations state that contractors are required to analyze other personnel actions as part of their affirmative action program obligation. Your direction? Clear as mud.

The advice would be that the regulations are in place and there is not much a contractor can do to argue against them. Contractors have always been expected to have other personnel actions tracked and analyzed and therefore, be able to provide all data in the event of an audit. Besides, if the data can explain the discrepancies in numbers then why not provide it? Now, if the data cannot explain the discrepancies, as is often the case, the contractor may have some explaining to do in regard to their recordkeeping systems and a Notice of Violation from OFCCP becomes likely.