There was a long period during which federal government contractors could get away, year after year, with outsourcing their affirmative action obligations to a consultant to produce a cheap but nice looking affirmative action plan, then sign and put that plan on the shelf until next year. That period is over. Today's Office of Federal Contract Compliance Programs ("OFCCP") is truly expecting federal government contractors not just to annually do their affirmative action plans, but to develop and use their affirmative action programs "as a management tool." As a practical matter, this means affirmative action obligations are no longer about papering; they are about analyzing and doing. It also means that federal government contractors who do not have the in-house resources or know-how to design, maintain, implement and re-implement an affirmative action program are at serious risk.
A federal government contractor that does not have a compliant affirmative action plan and program when selected by OFCCP for a compliance review may risk losing one or more federal government contracts, may suffer the suspension of payments under such contracts or, in the worst cases, may be debarred. However, there can be an even more serious consequence of being unprepared. Federal government contractors who submit information to the OFCCP which they have not themselves analyzed in advance are, in very real terms, doing the equivalent of handing over to a plaintiff's lawyer the smoking gun to support a class action lawsuit against the company. If AAP data shows statistically significant adverse impacts against women or minorities in selection decisions, and the contractor has done nothing to address this, OFCCP will pursue a class remedy. If compensation data shows compensation disparities favoring males or whites to the extent of as little as 2% or $2,000, and the contractor cannot explain them according to non-discriminatory factors, OFCCP will pursue equal pay liability.
Unfortunately, because many federal contractors have put little care or attention into their AAPs in recent years, there is too often a "garbage in, garbage out" problem with those AAPs, providing OFCCP with a basis for saddling the federal contractor with class-like liability based on data that is not even accurate.
In their direct dealings with the OFCCP:
- Representing and defending federal contractors in compliance reviews conducted by the OFCCP, whether immediately upon receipt of the scheduling letter or in battling back against a predetermination notice or notice of violations;
- Negotiating favorable conciliation agreements in the face of unreasonable demands by the OFCCP; and
- Providing training required by OFCCP conciliation agreements and counseling in connection with the additional affirmative commitments, administration of settlement funds, preferential hiring and periodic reporting requirements generally included in conciliation agreements.
In their proactive attempts to achieve full compliance before OFCCP comes:
- Designing and/or redesigning affirmative action plans to ensure they are an accurate reflection of the contractor's workforce, selection activities and compensation practices;
- Working with contractors to self-audit, cloaked by the attorney-client privilege, both the adverse impacts and the compensation disparities revealed by their AAP data; and
- Working with contractors to take all necessary steps to neutralize and diminish the potential for negative findings and violations during any future OFCCP compliance review.
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