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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.
This article is for general information and does not include
full legal analysis of the matters presented. It should not be
construed or relied upon as legal advice or legal opinion on any
specific facts or circumstances. The description of the results of
any specific case or transaction contained herein does not mean or
suggest that similar results can or could be obtained in any other
matter. Each legal matter should be considered to be unique and
subject to varying results. The invitation to contact the authors
or attorneys in our firm is not a solicitation to provide
professional services and should not be construed as a statement as
to any availability to perform legal services in any jurisdiction
in which such attorney is not permitted to practice.
Duane Morris LLP, a full-service law firm with more than 700
attorneys in 24 offices in the United States and internationally,
offers innovative solutions to the legal and business challenges
presented by today's evolving global markets. Duane Morris LLP,
a full-service law firm with more than 700 attorneys in 24 offices
in the United States and internationally, offers innovative
solutions to the legal and business challenges presented by
today's evolving global markets. The
Duane Morris Institute provides training workshops for HR
professionals, in-house counsel, benefits administrators and senior
managers.
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