top ten contractor mistakes in ofccp audits

Top Ten List of Contractor Mistakes

in an OFCCP Audit

Presented by:

Michelle Duncan, Esq.

[email protected]

www.jacksonlewis.com

mailto:[email protected]

http://www.jacksonlewis.com/

© 2013 Jackson Lewis LLP

Introductory Statement

The materials contained in this presentation were prepared

by the law firm of Jackson Lewis LLP for the participants’

reference in connection with education seminars presented

by Jackson Lewis LLP. Attendees should consult with

counsel before taking any actions and should not consider

these materials or discussions about these materials to be

legal or other advice.

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About the Firm

• Represents management exclusively in every aspect of

employment, benefits, labor, and immigration law and

related litigation

• 750 attorneys in 52 locations nationwide

• Current caseload of over 6,500 litigations and

approximately 415 class actions

• Founding member of L&E Global

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About the Affirmative Action and

OFCCP Practice Group

Using specially designed proprietary software, our diverse

practice group of 40 lawyers and paraprofessionals

prepares approximately 2,500 affirmative action plans

(“AAPs”) annually for our federal contactor clients. We

defend against the imposition of citations and allegations

of discrimination in connection with audits by the Office of

Federal Contract Compliance Programs (“OFCCP”) and

offer liability avoidance services, including vulnerability

audits and statistical analyses employing the methodology

used by the OFCCP to identify potential discrimination.

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About Michelle L. Duncan

Michelle Duncan is a Partner in the Denver office of Jackson Lewis. Michelle

focuses her practice on representing employers in affirmative action and

employment discrimination matters before OFCCP, workplace safety and health

matters before OSHA and minimum wage and overtime matters before the U.S.

Department of Labor’s Wage and Hour Division.

Michelle joined the firm after working for nearly fourteen years as a trial attorney

with the U.S. Department of Labor, Office of the Solicitor. She served in the

National Office in Washington, D.C., as well as in the Dallas and Denver Regional

Offices.

During her tenure with the U.S. Department of Labor, Michelle was widely

regarded as a leading expert on OFCCP litigation. She litigated numerous OFCCP

cases and provided ongoing counsel to high-level OFCCP officials.

Michelle received her Bachelor of Arts degree in American Public Affairs from

Michigan State University, James Madison College in 1993. In 1998, she received

her juris doctorate degree, cum laude, from the American University, Washington

College of Law. She is a member of the bar in Maryland and Colorado.

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Number 10

Starting at the Top Instead of the Bottom

• Know the agency’s

decision-making process

and navigate it from the

bottom up

• Include lower level officials

in your conversations

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Number 9

Treating the Compliance Officer as the “Enemy”

• Help them close the audit

• Figure out why they need something and help them

satisfy that need

• Be informed, be prepared and be nice

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Number 8

Failing to Use the Agency’s Resources

• Regulations

• Federal Contract Compliance Manual

• Directives, Webinars, FAQs

• Website

• HQ 800 call-in number

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Number 7

Confusing Affirmative Action and

Non-Discrimination

• “We didn’t discriminate, we hired above availability.”

• Having a diverse workforce is not a

defense to discrimination

• Being “underutilized” (or setting goals) is not an

admission of discrimination

• Two separate concepts at play

• Affirmative action

• Nondiscrimination/EEO

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Number 6

Providing Everything Requested by OFCCP

• Examples:

• Payroll records

• Sub-minority group data

• Applications/resumes

• Performance evaluations

• Be aware of what’s required by the scheduling letter

• Push back when there’s not a good basis for the request

• Offer alternative information/data/documents

• Example: Updated Comp Snapshot

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Number 5

Not Knowing Your Data & Results

• Scenario

• NOV issued for discrimination against Hispanics

• Response to NOV submitted proposing changes to

applicant pool & hires

• If all changes are accepted, SF for Hispanics

decreases but now gender issue emerges

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Number 4

Making “Fishy” Refinements

• Removing “unqualified” applicants from the pool – when

you also have “unqualified” hires

• Making changes to one side of the equation

• Removing applicants based on “unreliable” disposition

codes (aka dump codes)

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Number 3

Not Understanding the Bargain You Struck

• Withholdings, 1099s, W-2s - - OH MY!

• Interest = 1099

• Back pay = W-2 (minus employee withholdings)

• Employer withholdings are paid outside of the settlement

• Issue arises after an agreement in principle is reached

• Employer balks at administrative costs and/or

withholdings

• Counsel never advised employer of the extra expense

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Number 2

Agreeing to OFCCP’s “Unit” of Analysis

• OFCCP will change the unit of analysis, if the facts

support a change

• Change in the period evaluated

• Selection process, decision-makers, selection criteria

• Change from job group to job title

• OFCCP will do a “cross-over” analysis – by job title

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Number 1

Failing to Refine the Applicant Pool

• Date of application and hire

OFCCP’s “rule” – follow the applicant

• Applicants who took themselves out of the running

• No longer interested

• No show for test, interview, etc.

• Never considered

• Basic qualifications

• Salary requirement

• Willingness to lift, sit, stand

• Willington to work hours

• Need solid disposition codes to support!!!!!

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QUESTIONS?

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top ten contractor mistakes in ofccp audits

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