Wednesday, June 30, 2010

Recent OFCCP Audit Focus: VEVRAA and JVA Compliance

As the OFCCP continues to aggressively audit contractors on issues that were not as thoroughly investigated in the past, contractors must be aware of the current regulations to be prepared in the likely event an audit letter arrives on their desk. The Jobs for Veterans Act (JVA) and Vietnam Veterans’ Readjustment Act (VEVRAA) amendments in 2003 created a shift in focus from OFCCP, particularly related to job posting compliance. The JVA amendments made three significant changes to the Affirmative Action requirements of VEVRAA:

1. The threshold dollar amount for contracts raised from $25,00 to 100,000 for contractors that must be covered with an affirmative action plan
2. The list of covered veterans has been redefined from special disabled veterans, newly separated veterans, other protected veterans, and veterans of the Vietnam era to disabled veterans, recently separated veterans, other protected veterans, and Armed Forces service medal veterans.
3. The cut-off date for following the new regulations is December 1, 2003. Therefore, if a contractor had a contract with $25,000 or more before December 31, 2003 and one of $100,000 or more after December31, 2003 the contractor must comply with both.

With the new amendments and overhaul of regulations, auditors are no longer accepting a generic list of outreach programs to verify compliance. Contractors are now expected to prove to the OFCCP that they are making good faith efforts to place veterans into their workforce by showing detailed documentation of all programs being used to attract veterans. Furthermore, contractors are responsible for being able to determine which programs are working and which programs are not working in order to abandon any programs that don’t have an impact. The intent is to show focus on efforts that do demonstrate results. To stay proactive with their affirmative action plan with regards to veteran recruitment, contractors can use specific sites targeted towards reaching veterans:

The following links provide free job postings for employers aiming to attract veterans:

The following links provide resources such as career events and priced job postings for employers aiming to attract veterans:

The Benefits of a Conducting an On-Site Mock Audit

Why should a federal contractor consider an onsite mock audit? With the current OFCCP administration, we have seen compliance officers who conduct onsite audits regardless of whether potential problem indicators exist or not (in fact, Active Case Management is no longer being practiced by the OFCCP). In several audits and separate local ILG meetings, OFCCP representatives had also stated that on-site audits are now part of OFCCP’s standard practice. So, how can an employer get better prepared for the inevitable on-site visit from a compliance officer in case of an audit? Let’s evaluate the benefits of conducting an “onsite mock audit”.

An on-site mock audit is a dry-run of the actual OFCCP on-site visit (of course, without the presence of the OFCCP Compliance Officer). In an on-site mock audit, employers need to anticipate the scenarios and questions that they think might occur during the actual on-site audit.

Following are some common scenarios during an on-site audit. Each scenario is followed by reason(s) why conducting mock audit prior to the OFCCP’s actual visit date will prove beneficial:

1. The compliance officer will tour the facility – the mock audit can reveal potential deficiencies in, but not limited to, the following areas:
o Required posters are not posted in conspicuous places (e.g., common areas)
o Areas that are not accessible to employees/applicants with mobility impairments
o Unpleasant and/or hazardous work conditions
o Employees not exercising safety measures set forth by the organization

2. The compliance officer will hold formal and informal interviews with employees and HR Managers – the mock audit can reveal deficiencies in, but not limited to, the following areas:
o Some employees are not aware of the employer’s sexual harassment policies
o Some employees are not aware of the measures set by the organization to ensure safety while performing the necessary work
o Employees and managers are not aware of the terms EEO or AA
o Managers are not aware of the affirmative action programs

3. The compliance officer will review personnel data and supporting documentation with regards to some personnel decisions - the mock audit can reveal deficiencies in, but not limited to, the following areas:
o Lack of or insufficient data (e.g., are all the hires in the applicant file, record-retention obligations, etc.)
o Lack of or insufficient documentation to support personnel decisions
o Lack of proper documentation (or disposition) on who were considered as applicants
o List of employees who self identified as veterans or with disability

4. The compliance officer will review outreach programs - the mock audit can reveal deficiencies in, but not limited to, the following areas:
o Lack of proper documentation on the outreach programs (who or which organization were contacted? What are the results of such programs? etc.)
o Did the outreach programs prove to be effective?

These are just some of the things that can help an organization be prepared for that “on-site day.” Being well prepared for the on-site can minimize any anxieties that the executives, managers, supervisors, and employees may have regarding the visit. A mock audit can also foster confidence which should minimize inconsistent responses to the compliance officer and hopefully, result in a less “painful” visit.

OFCCP Celebrating Their 45th Anniversary

E-mail sent from the Dept. of Labor on June 30, 2010

OFCCP Looks Ahead to 45th Anniversary of E.O. 11246

On September 24, 1965, President Lyndon B. Johnson signed Executive Order (EO) 11246 ringing in a new era of nondiscrimination and affirmative action requirements for those companies doing business with the Federal Government. OFCCP plans to highlight this important milestone and celebrate its accomplishments toward making America’s workplaces diverse and free of discrimination. Preliminary ideas include hosting special events around the nation, developing educational materials, engaging the media and getting the word out via OFCCP’s Web site, webinars and social media tools. OFCCP encourages all organizations to join in this celebration by promoting the importance of preventing workplace discrimination and highlighting their successes in doing so. Furthermore, OFCCP is collecting personal stories from individuals who have been positively impacted by EO 11246 or OFCCP’s work. For more information, or if you would like to contribute a story, please e-mail

Monday, June 14, 2010

OFCCP Settles Hiring Discrimination case with The Wackenhut Corp.

The OFCCP has posted a News Release regarding their settlement with The Wackenhut Corporation for $290,000.

OFCCP News Release: [06/09/2010]
Contact Name: Rich Kulczewski
Phone Number: (303) 844-1302
Release Number: 10-0736-DEN

US Department of Labor settles hiring discrimination case with The Wackenhut Corp. in Aurora, Colo.
Company agrees to pay $290,000 to 446 African-American job applicants

DENVER — The U.S. Department of Labor's Office of Federal Contract Compliance Programs has announced that The Wackenhut Corp., doing business as G4S Wackenhut, has entered into a consent decree to settle findings of hiring discrimination at its Aurora, Colo., facility. The consent decree settles OFCCP's allegations that Wackenhut engaged in hiring discrimination against 446 rejected African-American applicants for the position of traditional security officer for a two-year period. Wackenhut is headquartered in Palm Beach Gardens, Fla.

"The department is committed to ensuring that federal contractors and subcontractors hire, promote and compensate their employees fairly, without respect to their race, gender, ethnicity, disability, religion or veteran status," said Patricia A. Shiu, director of OFCCP, who is based in Washington, D.C. "This settlement of $290,000 in back pay on behalf of 446 African-Americans should put all federal contractors on notice that the Labor Department is serious about eliminating systemic discrimination."

OFCCP investigators found that the company engaged in hiring discrimination against African-Americans from Jan. 1, 2002, through Dec. 31, 2003. Under the terms of the consent decree and order, filed with the U.S. Department of Labor's Office of Administrative Law Judges, Wackenhut will pay a total of $290,000 in back pay and interest to the 446 rejected African-American applicants and will hire 41 of the applicants into traditional security officer positions. The company also agreed to undertake extensive self-monitoring measures to ensure that all hiring practices fully comply with the law and will immediately correct any discriminatory practice. In addition, Wackenhut will ensure compliance with Executive Order 11246 recordkeeping requirements.

"We strongly encourage other employers to take proactive steps to come into compliance with the law to prevent workplace discrimination," said Melissa Speer, OFCCP acting director of OFCCP's Southwest and Rocky Mountain Regions, who is located in Dallas.

OFCCP, an agency of the U.S. Department of Labor, enforces Executive Order 11246, Section 503 of the Rehabilitation Act of 1973, and the Vietnam Era Veterans' Readjustment Assistance Act of 1974 that prohibit employment discrimination by federal contractors. The agency monitors federal contractors to ensure that they provide equal employment opportunities without regard to race, gender, color, religion, national origin, disability or veteran status.

Job Posting Requirements and Handling Temp Jobs

One of the most talked about areas of EEO compliance in 2010 is Job Posting Requirements. As contractors continue to try and work with the updated expectations, a lot of questions are coming up about exemptions to the standard requirements. One area of concern in particular is how to handle temp jobs, and whether or not posting for these jobs is necessary. BCG would like to emphasize that OFCCP to date has been clear that the only exemptions are the ones clearly spelled out under the Jobs for Veterans Act (JVA).

The website is here:

Listed here is the OFCCP's response to the question regarding posting requirements for temporary positions and linking jobs to the employers' site:

Is a contractor required to list temporary positions?

Employment openings subject to the mandatory job listing requirement include all positions except:

1) executive and top management positions
2) positions that will be filled from within the contractor's organization
3) positions lasting three days or less.

All other employment openings, including those for full-time employment, temporary employment of more than three days' duration, and part-time employment, are subject to the mandatory listing requirement.

Can a contractor satisfy the job listing requirement by sending to the appropriate employment delivery system a link to a specific job opening posted on the contractor's website?

States have prescribed a variety of procedures for listing job openings and a particular state may permit listing in its employment service delivery system by more than one method. A contractor may satisfy its mandatory job listing obligations under VEVRAA by sending an email message to the local employment service office or the appropriate employment service delivery system that includes a link to a specific job opening on the contractor's website, if this is a method permitted by the employment service delivery system for listing job openings. The mandatory job listing obligation requires that the contractor provide information about an employment opening in the manner prescribed by the employment service delivery system for listing employment openings in the system. The contractor must provide information that is sufficient to allow the appropriate employment service delivery system to carry out its responsibilities under VEVRAA to give protected veterans priority in referrals to federal contractor employment openings.

Friday, June 11, 2010

2010 EEO File Census Data Update and Release Date

Many have questioned why their occupation information was not solicited as part of the 2010 census survey. The occupation and EEO information questions have been moved to become part of the American Community Survey (ACS) 2006-2010. The American Community Survey is an ongoing survey that is sent to a sample of the population to help tell us what the population looks like and how it lives.

The 2010 EEO File will be similar to the 2000 EEO File. One major difference is that the 2010 EEO File will be created from a five-year roll-up of American Community Survey data, e.g., ACS data from 2006 through 2010.

The data from the 2010 EEO File and the means for accessing it will not be available for public or private sector use until the Fall of 2012 as opposed to the Fall of 2011, as originally planned.

For more information on the ACS, please visit,

Friday, June 4, 2010

BCG Institute for Workforce Development to speak at National ILG in August

BCG Institute for Workforce Development (BCGi) is pleased to announce that we have been selected as speakers for the National Industry Liaison Group conference being held at the beautiful Red Rock Resort in Las Vegas, Nevada in August 2010. BCGi will be hosting a half-day session on Compensation Analysis during the Pre-Conference and we will be hosting a session on managing OFCCP audits on the final day of the conference.

Here is a link to the conference site and details about the BCGi presentations are listed below.

Pre-Conference on Tuesday, August 3, 2010
1:30 pm - 4:30 pm
BCG Insitute for Workforce Development - From Theory to Practice: Learning Compensation Analysis in a Classroom Setting (Jim Higgins, Ed.D.)


Concurrent Session on Friday, August 6, 2010
9:00 am - 10:00 am
BCG Institute for Workforce Development - Taking on the tough problems in an OFCCP audit: Solutions to the most challenging issues for all contractors (Patrick Nooren, Ph.D. Executive Vice-President)

Thursday, June 3, 2010

OFCCP Puts New FAAP Requests on Hold

The OFCCP has posted a new link on their website that places all new Functional Affirmative Action Plan (FAAP) requests on hold until further notice. See details below.

Office of Federal Contract Compliance Programs (OFCCP)

FAAP Notice

OFCCP is not accepting any new requests to develop or to renew Functional Affirmative Action Program (FAAP) agreements at this time. The agency is currently reviewing its policies regarding the FAAP process. We will issue new guidance in the near future. Until such guidance is issued, contractors without FAAP agreements should continue to develop and maintain establishment-based AAPs. Contractors with approved FAAP agreements should maintain their functional unit AAPs and operate under their current FAAP agreement. If significant changes occur in the normal order of business for contractors with existing FAAP agreements, such as mergers, acquisitions, divestures, and recent changes, these should be reported to the FAAP Director for appropriate actions, as per the agreement. OFCCP will notify contractors when new guidance is published.