DOL / OFCCP News

Date: 4/25/10
Title: DOL / OFCCP News

The OFCCP is busy at work as they have just sent out their spring Corporate Scheduling Announcement Letters (CSAL) to contractor's Chief Executive Officer.  The CSAL informs the contractor that two or more of its establishments have been identified by OFCCP to undergo a compliance evaluation during this fiscal year.  Contractors with just one establishment/location would only receive a scheduling letter and not CSAL.  Some regional OFCCP offices have also started sending out scheduling letters.

In a meeting with staff from the Baltimore OFCCP office (also covers the DC area) on April 13th, we were told that OFCCP:

• will come onsite for all compliance evaluations scheduled for the rest of the fiscal year (at least initiated out of the Baltimore office) 1;
• will review the online application intake system to see if it prevents an individual with a disability from applying;
• is focusing on the contractor's good faith efforts to identify and place people of color, individuals with disabilities and veterans;
• will request documentation to support good faith efforts.  They will also contact the organizations to verify efforts.  If there is no documentation or proof of efforts, a conciliation agreement will be initiated;
• wll request a list of hires who are disabled who have requested and been given accommodations, along with documentation to show the type of accommodation;
• is no longer focusing on system discrimination only but are also looking for cases of individual discrimination; and are
• spending more time reviewing the AAP written language.

1 Onsite reviews will include: review of good faith efforts and supporting documentation, file review to support an issue identified in the impact ratio analysis, interviews regarding issues, tour of facility, and a review of the online application intake system.

In other news, the Department of Labor has also launched a website (http://ogesdw.dol.gov/index.php) which provides enforcement data from FY 2004 - 2010.  The data is available from the following agencies:

• EBSA - Employee Benefits Security Administration
• MSHA - Mine Safety & Health Administration
• OFCCP - Offie of Federal Contracts Compliance Programs
• OSHA - Occupational Safety & Health Administration
• WHD - Wage and Hour Division

Currently you can search any of these agencies by state (up to 5 states at a time), by zip code, by NAICS or SIC codes.  The agency is currently working on the capability of searching by company name.

The OFCCP enforcement database reports on completed compliance evaluations and complaint investigations and provides the following information, which is updated monthly:

• Fiscal Year
• Contractor Name
• Establishment City, State, Zip
• Duns No, NAICS
• Parent Company Name, Address, City, State, Zip
• Total Employees
• Minority Employees
• Female Employees
• Evaluation Closure Date
• Closure Type
  • Written AAP
  • Past Performance
  • Recordkeeping or Support
  • Recruiting
  • Denial of Records/Access
  • Hiring
  • Promotion
  • Terminations
  • Selection or Testing
  • Salary
  • Medical Screening / Accommodation
  • Systemic Discrimination

The following charts summarize the results of the compliance evaluation enforcement data for the Mid-Atlantic region, as well as the types of closures.

State	FY	Total Compliance Evaluations	Percent of Total	Notice of Compliance	Conciliation Agreements	Financial Settlements
MD	FY2004	114	20.0%	112	2
	FY2005	67	11.8%	66	1
	FY2006	103	18.1%	102		1
	FY2007	121	21.3%	117	3	1
	FY2008	56	9.8%	54		2
	FY2009	68	12.0%	61	4	3
	FY2010	40	7.0%	39	1
	Grand Total	569	100.0%	551	11	7
PA	FY2004	261	18.4%	247	12	2
	FY2005	113	8.0%	106	3	4
	FY2006	292	20.6%	284	5	3
	FY2007	248	17.5%	244	3	1
	FY2008	270	19.1%	267	2	1
	FY2009	186	13.1%	156	24	5
	FY2010	45	3.2%	36	9
	Grand Total	1415	100.0%	1340	58	16
VA	FY2004	136	15.6%	129	6	1
	FY2005	106	12.1%	104	2
	FY2006	123	14.1%	122		1
	FY2007	170	19.5%	167	1	2
	FY2008	122	14.0%	119		3
	FY2009	173	19.8%	157	14	2
	FY2010	44	5.0%	37	7
	Grand Total	874	100.0%	835	30	9
DC	FY2004	35	21.1%	33	1	1
	FY2005	21	12.7%	21
	FY2006	17	10.2%	17
	FY2007	44	26.5%	44
	FY2008	15	9.0%	15
	FY2009	18	10.8%	17	1
	FY2010	16	9.6%	15	1
	Grand Total	166	100.0%	162	3	1

Deficiency Type	MD	PA	VA	DC
Written AAP	3	8	2	0
Past Performance	1	8	1	0
Recordkeeping or Support	14	50	13	2
Recruitment	7	42	21	2
Denial of Records/Access	3	2	0	0
Hiring	8	16	6	0
Promotion	1	0	0	0
Termination	0	0	0	0
Selection or Testing	15	0	0	0
Salary	13	4	0	0
Medical Screening	0	0	0	0
Accommodation	1	0	0	0
Systemic Discrimination	2	3	3	0

As reported by DCI Consulting, out of 21, 603 compliance evaluations, the following number of violations are listed:

• 5 promotion cases
• 5 termination cases
• 381 hiring cases
• 70 denial of records/access cases
• 29 selection or testing cases
• 40 salary cases
• 6 accommodation cases
• 171 "system discrimination" cases (no definition given for systemic)

Out of 804 complaint investigations, the following numbers are listed:

• No multi-region complaints
• 338 based on disability status
• 377 based on veteran status
• 4 based on religion
• 1 wages violation (in FY 2004)
• 2 retaliation violations (in FY 2008)
• No harassment violations
• 8 pregnancy leave violations (2 in FY 2010)
• 8 accommodation violations

Workplace Dynamics' Observations:

For the past several years, OFCCP has identified their primary focus to be on the recruiting and selection process and on salary.  From a review of the types of violations, especially in the Mid-Atlantic region, it is clear that OFCCP's scrutiny of the selection and hiring process has yielded the most violations.  This is supported by the high number of violations in the Mid-Atlantic region for recordkeeping or support, as we expect that most of this has to do with the failure to maintain applicant flow data and/or post job openings with the State Employment Service.

Alternatively, even though many salary reviews have progressed to the National elvel whereby OFCCP requested the additional 12-items, not many ended up as violations.  From our experience, OFCCP gave up on their investigation of salary issues.

The foregoing has been prepared for the general information of clients and friends of Workplace Dynamics LLC.  It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel.