HR Unlimited, Inc: How Effective is the OFCCP? Part IV

Happy New Year! We start 2017 wrapping up our series on the Government Accountability Office (GAO)’s report of the OFCCP’s effectiveness in enforcing Affirmative Action laws and regulations. You may recall that the GAO in its recent report found the OFCCP to be exhibiting five areas of weakness. In the previous parts, we explored the first three areas. We will now discuss the last two. Since you likely have a lot of work to do upon return from your holiday celebrations, let’s not waste any more time. Here they are:

Reported Inconsistencies in Compliance Evaluations May Be Exacerbated by Lack of Training

According to the GAO, Compliance Officers are not receiving the necessary training to obtain, much less maintain, the skills necessary to conduct Compliance Evaluations. This too would tend to lead to inconsistent practices across offices. For example, the OFCCP in 2013 focused its training efforts on recent regulatory changes. OFCCP officials acknowledge that since 2013 they have conducted 23 staff webinars focused on these regulatory changes. The result: Compliance Officers lack access to essential, generalized training and knowledge that enable them to properly address many of the issues that arise during Compliance Evaluations. In fact, the GAO states in its report, that “compliance officers we spoke to in one district office were concerned that the lack of ongoing professional training limited their ability to correctly and consistently conduct compliance evaluations”.

What if anything has the OFCCP done to address this issue? In some offices, managers paired Compliance Officers with less expertise in some areas with more experienced Compliance Officers. While that is certainly a reasonable and sensitive approach, there is one glaring flaw here, too: This approach only occurs in some offices, it lacks the centralized, holistic effort needed, and therefore cannot address the reported inconsistencies in the manner that is truly necessary and appropriate. The GAO also pointed out that the training being given fails to address employees’ career development concerns, as well as needed skill-specific training.

In addition, the training the OFCCP has provided has not been timely. Agency officials stated that “budget constraints” have made providing timely training difficult. (This statement is curious in light of the fact that the OFCCP in the last few years probably experienced the largest budget allocations ever.) In half the regions the GAO visited, managers admitted that new Compliance Officers did not receive training. In one case, a Compliance Officer stated that s/he had been employed with the OFCCP for 8 or more months before receiving formal training. Compliance Officers in one district office specifically complained they felt unprepared to do their jobs.

Such a glaring deficiency leaves little wonder why the OFCCP’s efforts are at best inconsistent, and, in turn, why its effectiveness may be compromised. The GAO’s recommendation in this regard should therefore come as no surprise:

Provide timely and uniform training to new staff, as well as provide continuing training opportunities to assist compliance officers in maintaining a level of competence to help ensure quality and consistency of evaluations across regions and district offices.

Most Violations Are Resolved Through Conciliation Agreements

According to the GAO, between Fiscal Years 2010 and 2015, the OFCCP resolved 99 percent of its violations through Conciliation Agreements, in which the contractor agrees to take certain remedial actions to address the violation(s) in question. Those remedies may include injunctive-type relief, where a contractor is required to either refrain from certain practices deemed discriminatory or to implement certain measures, such as an applicant tracking system. Remedies may also include offering jobs to certain rejected applicants, back pay and other money damages.

Is there anything wrong with resolving violations through Conciliation Agreements? Inherently, no. The problem is if that is effectively the only remedy, then many cases will fall through the cracks. For example, what happens if the contractor does not live up to the commitments it made in a Conciliation Agreement? Compliance Officers are supposed to monitor and report progress in compliance with the Conciliation Agreement. When a contractor does not comply with a Conciliation Agreement, the OFCCP may begin an investigation. The GAO notes that “since 2010, OFCCP has referred a small number of cases to the DOL Office of the Solicitor for enforcement through administrative enforcement proceedings… Additionally, OFCCP may refer a case to the Office of the Solicitor in certain other circumstances, such as when an establishment has denied compliance officers access to information or their facilities. When referred a case, the Office of the Solicitor generally reviews the case and may take further action through administrative enforcement procedures.”

What happens then? Administrative sanctions can be imposed, up to and including debarment, where a contractor loses their contract and is ineligible to receive future federal government contracts. However, even the OFCCP admits that debarment is rare. In fact, on average, debarment happened less than once per fiscal year since 2010. The rarity of this remedy is reflective not of effective enforcement efforts by the OFCCP, but the OFCCP’s reluctance to use it. Why is that? According to the OFCCP, “because contractors who are debarred are no longer under OFCCP’s jurisdiction and not subject to the worker protection requirements the agency oversees.” Here too, it is easy to see where cases of either discrimination or other violations of affirmative action laws and regulations are falling through the cracks.

Oddly enough, the GAO’s remaining recommendations do not address this particular issue. It would seem, however, that the OFCCP needs to re-visit both its methods and its use of available methods. While it did not specifically name these as weaknesses in enforcement efforts, the GAO did include these last two recommendations in its report:

Review outreach and compliance assistance efforts and identify options for improving information provided to federal contractors and workers to enhance their understanding of nondiscrimination and affirmative action requirements to ensure equal employment opportunities for protected workers.

Assess existing contractor guidance for clarity to ensure that contractors have information that helps them better understand their responsibilities regarding nondiscrimination and affirmative action requirements to ensure equal employment opportunities for protected workers.

These last two recommendations are the only ones directed at how to work with contractors.

So, there you have it. According to the GAO, the OFCCP needs to take steps to ensure consistency in its offices. That’s the nutshell version. You can read our previous two posts to get a little more in depth and if you want more details, you can access the GAO report here.

Suppose you don’t want to do any of that? What can you take away from this three-part series, and the GAO findings? Here’s what you should not do. You should not assume that because the OFCCP has been found by the GAO to have weaknesses in its effectiveness that you no longer need to focus on your affirmative action obligations as a federal contractor. As you well know from our other posts, once you are selected for a Compliance Evaluation, you will be subject to scrutiny, if not sanctions, if the OFCCP finds violations. In our opinion, it is not worth the risk. So either keep doing what you’re doing, or reach out to us with any questions.

For more information, contact Ahmed Younies at 714-884-4610 or ayounies@hrunlimitedinc.com.

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