Commonly Requested Information by the OFCCP after the Affirmative Action Plan (AAP) is submitted (Desk Audit Stage)

By Nina Le-Tse

In the past, the OFCCP focused on systemic discrimination and when auditing a Federal contractors, they would typically only request additional information if a potential problem area existed in the selection process (hiring) and/or compensation. Under the new Administration, the OFCCP is no longer just looking for systemic discrimination, but for overall compliance with the AA laws and regulations as well. At a local Town Hall meeting in San Francisco, CA, Director Patricia A. Shiu stated that “being a federal contractor is a privilege not a right”; therefore, all Federal contractors are obligated to strictly follow the regulations set forth by the OFCCP.

Biddle Consulting Group has supported more desk and on-site audits in the past six months than in the previous two years. This shows that the new administration is aggressively practicing what they preach.

If you have been audited in the past six months, you may have noticed that the compliance officers are more aggressive in requesting additional data and are reviewing the submitted information in greater detail compared to reviews done by the previous administration. Since the OFCCP is looking for overall compliance, they may request additional information even if the submitted AAP does not show any obvious problem areas. Below is a list of commonly requested information at the desk audit stage under the new administration:

1. Previous job group summary count (employees at beginning of the year). The OFCCP is trying to reconcile all of the provided data. They may take last year’s representations by job group, add/subtract the transactions that occurred during the evaluation period, and expect that the result of this calculation will be the same or very close to the ending (current AAP) job group summary count. If not, they may assume a lack of data integrity unless the contractor can prove otherwise.
   


2. Compensation by job group and/or pay grade. The OFCCP is aware that job groups are very broad and may not be the most appropriate way to analyze compensation. They still request contractors to submit this data by job group and/or pay grade because the bigger data set will yield a better sample size for analysis. Contractors must remind the auditor that item 11 in the audit letter specifically asks contractors to “present this data in the manner most consistent with your current compensation system.” Therefore, it is appropriate to submit this data by job title (or any grouping that is appropriate for your company) assuming that title is the most consistent grouping that represents your current compensation system. It is often inaccurate to analyze the compensation structure at any other level when pay and responsibility is typically unique to individual jobs. Job groups are too broad and include employees in job titles who are typically not similarly situated.
   


3. Evidence of job posting to the local State Employment Agency
   


4. Good faith outreach and recruitment for veterans and persons with disabilities


1. Evidence of Veterans and Disabled initiatives


5. Vets-100 and/or Vets-100A
   


6. If there are potential problem areas found in the submitted data (selection practices are the most common), OFCCP may target the company for possible systemic discrimination enforcement, and:


1. Thoroughly investigate and scrutinize any alleged discriminatory practices with help from the Solicitor of Labor.


2. May entail producing a number of documents. Narrative of steps for selection process. For each step:


1. Can applicant be eliminated of identified step(s)?


2. Describe selection criteria


3. Name, job, and description of responsibilities


4. Describe records maintained and length of time kept


5. Provide applicant flow and selection summary data for race/gender and/or minority/non-minority (e.g., meet minimum qualification, withdrew, interviewed, offered, etc.)


6. How long are applicants active?


3. Certify number of applications are consistent with applicant flow provided

Following are some best practices ideas that may help you (as a federal contractor) in closing your audit earlier and easier:

1. Develop a professional looking affirmative action plan (AAP)


2. Ensure accuracy and completeness of AAPs, supporting documents, and reports


3. If any preliminary indications of problem areas are found, research the issue to ensure that it is due to nondiscriminatory and/or job-related reasons


4. Research applicant flow to ensure only applicants associated with the hires are included


1. Use the Definition of an Internet Applicant


5. Analyze compensation to demonstrate equity


6. Inform the site management and upper level management of OFCCP Compliance Reviews (audit)


7. Have the following evidences ready prior to submission (if possible):




1. Outline local recruiting, selection, and hiring processes


2. Good faith efforts (outreach, recruitment, additional initiatives relate to veterans and disabled, etc.)


3. Job openings listed with the state employment, local vets representative, etc.