OFCCP remains focused on contractor compliance with affirmative action regulations for vets and employees with disabilities, says attorney Susan Fahey Desmond.. And programmatic outreach is not enough any more; OFCCP wants to see personal relationships with outreach resources and a system for monitoring effectiveness.
Desmond, who is a partner in the New Orleans office of national employment law firm Jackson Lewis, made her comments at BLR’s Advanced Employment Issues Symposium, held recently in Las Vegas.
About Goals and Achievement
Under OFCCP (Office of Federal Contract Compliance Programs) rules, where the company’s representation of protected class members is significantly lower than availability, a goal is created. For measuring goal achievement, a placement analysis will show the placement of minorities/females into each job group, including new hire and promotions.
An annual report will document the achievement of goals. This report should be shared with the CEO.
What Obligations May Be Created
A goal creates a company obligation to pay additional attention to recruitment efforts to attract diverse candidates. It is for this process that OFCCP is now demanding more proactive outreach from employers.
Goals are recalculated every year, and may change depending on the placement activity and other changes in minority/female representation in the workforce.
Penalties/Sanctions
OFCCP investigates for violations either through compliance evaluations or in response to complaints. If a violation is found, OFCCP may ask the federal contractor or subcontractor to enter into conciliation negotiations. If conciliation efforts fail, OFCCP may initiate an administrative enforcement proceeding by filing an administrative complaint against the contractor or subcontractor.
If OFCCP files an administrative complaint, the contractor or subcontractor has 20 days to request a review by an Administrative Law Judge (ALJ), who hears the case and recommends a decision. The Department of Labor’s Administrative Review Board issues final decisions. If the contractor or subcontractor is dissatisfied with the ALJ’s decision, it may appeal the decision to the Board.
If the Board finds that the contractor or subcontractor in violation, it may order the contractor or subcontractor to provide appropriate relief, which may include restoration of back pay and employment status and benefits for the victim(s) of discrimination.
Depending upon the circumstances, violations also may result in cancellation, suspension, or termination of contracts, withholding of progress payments, and debarment.
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Roles in Maintaining Affirmative Action Compliance
It’s important for everyone involved to know his or her roles with regard to affirmative action, says Desmond. She outlines the roles as follows:
Recruiters
- Launch and coordinate company-wide diversity recruitment efforts
- Aid in the implementation of applicant tracking
HR generalists
- Investigate adverse impact and compensation disparities
- Compile materials documenting the company’s diversity recruitment and outreach efforts
- Oversee applicant tracking and self-identification
- Retain applicant/hiring process documentation
Management
- Spearhead and oversee investigation of adverse impact and compensation disparities
- Ensure the adequacy of company-wide EEO/anti-discrimination and anti-harassment policies, complaint procedures, and training for managers and employees
- Design and communicate an affirmative action compliance strategy.
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