Understanding OFCCP Compliance in 2011 – Part 1

With ongoing changes occurring with the Office of Federal Contract Compliance Programs (“OFCCP”) in 2011, we want to keep you apprised of agency announcements impacting Federal contractors and subcontractors in regards to OFCCP Compliance. The first, the Active Case Enforcement Directive (ACE) is outlined below. It is critical for any company listed as a Federal contractor and benefiting from doing business with the US Government, be aware of their responsibilities in regards to hiring and diversity compliance rules. Make no mistake, the Department of Labor is on a mission in 2011 and industry pundits and even the Department itself is making its intentions very clear. The Active Case Enforcement Directive (ACE) is a 2011 focus that as its name suggests is going to emphasize the enforcement of OFCCP compliance rules as per the directive of OFCCP Director Patricia Shiu. ACE will include the following: http://www.dol.gov/ofccp/regs/compliance/faqs/ACE_faqs.htm#Q1

• Employ all compliance methodologies such as compliance review, compliance check, focused review and offsite review of records

• All contractors selected for audit by the Federal Contractor Scheduling System (FCSS) will undergo a full desk audit rather than the abbreviated version typical of compliance evaluations prior to 2010

• Under ACM, full desk audits were conducted automatically for every 25th review and otherwise on an as needed basis

• Under ACE, every 25th contractor selected by FCSS will undergo a full compliance review, including an onsite

• Under ACM, onsites were conducted every 50th review

The critical take away from this information is that Federal Contractors wanting to conduct best practices and remain off the compliance violation list must make plans to conduct self-audits to determine gaps and where they may face issues in the event of an actual audit. Compliance teams should already be ensuring that:

• All affirmative action plans for women, minorities, veterans and disabled individuals are in place and being followed

• Make local good faith efforts to encourage these groups for employment opportunities

• Personnel transactions are reviewed for adverse impact

• Adverse impact findings are investigated and defensibility determined

• Compensation must be equitable across the company

• Open jobs must be listed with state employment offices and all postings are in place

• Be aware that the OFCCP had a focus on disability and veterans outreach and requires that each Federal Contractor have active relationships with local recruiting sources for these candidates

To assist contractors, OFCCP will continue to distribute CSALs or Corporate Scheduling Announcement letters in 2011. Contractors should take full advantage of this advance warning to prepare via self-audit.

Sources: – Seyfarth Shaw, LLP Attorneys Management Alert – Complying with OFCCP’s Internet Application Regulations: Overcoming Challenges While Recruiting for Government – Contractor Workspaces – Presented by Adler Group with Alissa Horvitz, Littler Mendelson, P.C. – US Department of Labor – www.dol.gov/ofccp  

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