United States: Responding To A Scheduling Letter From The OFCCP: The Little Things Matter

Last Updated: September 9 2015
Article by Carmen N. Couden

It is the Tuesday after a long holiday weekend, and you are faithfully going through the pile of mail on your desk when you spy an envelope from the United States Department of Labor's Office of Federal Contract Compliance Programs (OFCCP). You open the envelope and, sure enough, your facility has been selected for a compliance review under Executive Order 11246, the Vietnam Era Veterans' Readjustment Assistance Act, and Section 503 of the Rehabilitation Act. Which of the following most accurately describes your response?

  1. Hot dog! I finally get to do something with those affirmative action plans I have been patiently preparing for years!
  2. Story of my life . . . any time I take a long weekend, I always return to bad news.
  3. An OFCCP audit? Someone turn off the lights so I can curl up and cry in the corner.

Regardless of which response you chose, before you respond to the OFCCP, there are several things you should do to increase your chances of a successful audit outcome:

  1. Start early! You have 30 days from the date you receive the scheduling letter to respond to the OFCCP. Even if your affirmative action plans are already complete, it takes time to notify the appropriate internal and external personnel, compile the requested information, and complete the necessary pre-submission review.
  2. Review your affirmative action plans. Before you think about submitting information to the OFCCP, you should carefully review (or re-review) your company's affirmative action plans (AAPs) to make sure they contain all of the required components, data, and language. This includes the many new components and additional data now required under the amended regulations governing affirmative action for protected veterans and individuals with disabilities,which went into effect last year. If you are not sure what must be included in your AAPs, consult your legal counsel or peruse the OFCCP's sample plans (available here.) In addition, if you have not already done so, you should tailor the plan language to your company by removing any inapplicable boilerplate language and replacing it with content that is specific to your company.
  3. Reconcile the data used to prepare your AAPs. In addition to making sure that your plans contain all of the required information and data, you should confirm the data used to prepare your affirmative action plans are both complete and correct. For instance, you should confirm that the recruitment areas identified in the plan's availability report are correct and that the percentages/weighing of internal versus external recruiting is consistent with your company's recruiting activity. Additionally, you will want to confirm that the numbers of applicants, hires, promotions, and terminations reflected in your plan are correct. If you identify any errors, these should be corrected before the plans are submitted to the OFCCP.
  4. Review the applicant flow log. In conjunction with your reconciliation of the AAP data, you should also separately review the company's applicant flow log to be sure that all applicants (as that term is defined under the OFCCP's internet applicant rule) are included on the log and have disposition codes that specify whether they were hired and, if not, why they were not hired, and at which stage of the hiring process (e.g., application review, interview, second interview, post-offer, etc.) that decision was made. The log should also contain the gender, race/ethnicity, protected veteran status, and disability status for each applicant. Additionally, it is important that any candidates who do not satisfy the definition of an applicant (i.e., because they did not meet the basic qualifications for the position, were not considered by the company for the position, or withdrew from the process) are clearly identified and/or are removed from the applicant flow log. These individuals should not be included the applicant pool (counted in the number of applicants) identified in the company's affirmative action plan.
  5. Identify, investigate, and explain any "red flags" in your AAPs. It is also important to put yourself in the OFCCP compliance officer's shoes and identify, investigate, and explain any "red flag" items in your plans. For instance, you should review your adverse impact reports for hiring, promotions, and terminations to see if there are any indicators of potential discrimination. Pay particular attention to entry-level job groups and job groups with a high volume of employment activity as these are high-priority focus areas for the OFCCP. If there are any indicators of potential adverse impact, evaluate each step of the employment process (e.g., hiring, promotion, etc.) to determine whether there are particular factors that may be causing the adverse impact and remedy them where possible. Other potential red flags that should be investigated and addressed include, but are not limited to, one-to-one applicant to hire ratios (suggesting a potential failure to post, and recruit for, the position), numerous unknown races or genders for applicants and hires (indicative of a potential failure to solicit self-identification forms from applicants and new hires), multiple placement goals and/or a lack of progress towards meeting the prior year's goals (highlighting a potential failure to engage in effective good faith outreach and recruiting efforts), and a boilerplate listing of good faith efforts (suggesting a potential failure to identify and employ effective good faith efforts).
  6. Begin collecting supporting documentation and consult with legal counsel as necessary. Although there will be time to collect additional documentation after submitting the initial response to the OFCCP, it is best to collect any supporting documentation and consult with legal counsel regarding any potential red flag issues prior to responding. Counsel may be able to assist with the identification and remedying of certain red flag issues in advance of submission (e.g., goals or other adverse indicators resulting from outdated, erroneous, or incomplete data) and should be made aware of any potential issues that cannot be remedied before any data is sent to the OFCCP. In addition, counsel can help the company identify likely areas of additional inquiry before any more requests are received from the OFCCP. Counsel may also be able to assist with obtaining an extension of time to respond if such an extension is warranted under the circumstances.

Given the aggressive nature of the OFCCP's current enforcement agenda and efforts, it is often the little things that matter the most. Errors in data, a lack of records, or a failure to review and understand the information in the company's AAPs can create substantial problems during an audit and may result in significant legal liability for a company.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions