GAO Issues Report on OFCCP Activities - American Society of Employers - Anthony Kaylin

GAO Issues Report on OFCCP Activities

Upon a request by Congress, the General Accounting Office (GAO) conducted an audit on the U.S. Department of Labor’s (DOL) Office of Federal Contract Compliance Programs (OFCCP) activities for the past six years.  OFCCP is charged with ensuring that about 200,000 federal contractor establishments take affirmative action to provide equal employment opportunities for certain protected classes of workers. A number of complaints arose from the federal contractor community that reached the ears of Congress, who then requested the audit.

The GAO assessed how OFCCP conducts supply and service compliance evaluations, including the methodology, resources, and results.  It evaluated OFCCP outreach, assistance, and guidance efforts to assist contractors in complying with the requirements it enforces. The GAO analyzed both OFCCP Information System data and a non-generalizable sample of 43 case files.  It reviewed relevant federal laws, executive orders, regulations, guidance, and agency documents. The GAO also interviewed a non-generalizable sample of 24 contractors with a compliance evaluation; managers and staff in OFCCP’s headquarters and all six regional offices; and representatives of national organizations representing contractors and protected workers’ interests, which included the National Industry Liaison Group (NILG). 

The GAO found that since 2010 most federal supply and service contractors compliance evaluations (78%) conducted by OFCCP of federal supply and service contractors identified no violations.  Approximately 2% had discrimination findings in which there were monetary settlements, and the remaining 20% were for technical violations.  There were 20,918 compliance evaluations since 2010.  Only 360 had discrimination findings.

In fiscal year 2016, OFCCP operated with an annual budget of about $105 million and is authorized for 615 full-time-equivalent (FTE) staff positions which is a 19% decrease from its high of 755 in 2011. During this time, OFCCP’s budget has increased slightly from about $105 million to about $105.5 million.

OFCCP cannot choose contractors for audits.  It has to follow a neutral process. The total number of contractors to be reviewed each year is determined based on OFCCP’s region and district office staffing levels. The final scheduling list is typically distributed to each district office based on the contractor’s established physical location within the district office’s jurisdiction and is sorted using any of a number of neutrally applied factors, such as alphabetical order, employee count at the establishment, contract value, or contract expiration date.  When a contractor establishment is selected for evaluation, OFCCP typically provides a courtesy advance notice through a Corporate Scheduling Announcement Letter (CSAL) informing the establishment that they have been selected to undergo a compliance evaluation during the upcoming selection cycle. Once a contractor is scheduled for an evaluation, a “scheduling letter” is sent requesting the AAP and supporting documentation.  A compliance officer (CO) conducts a comprehensive desk audit, which is an off-site review of the submitted materials. If necessary, the compliance officer conducts an on-site review and further off-site analysis to make a final determination as to whether the contractor has committed any violations.

The GAO found that the OFCCP’s weak compliance evaluation selection process, reliance on voluntary compliance, inconsistent guidance, and lack of staff training create several challenges to its enforcement efforts.  However, the GAO found that it was federal contractors that were a major cause of the issues experienced by the OFCCP.  It found that in 2015, close to 85% of contractor establishments did not submit an AAP within 30 days of receiving a scheduling letter.

The GAO had six recommendations for the OFCCP.  These are:  

1.     Change the scheduling process so that compliance efforts focus on those contractors with the greatest risk of not following equal employment opportunity and affirmative action requirements.

2.     Develop a mechanism to monitor AAPs from covered federal contractors on a regular basis such as yearly electronic submission.

3.     Schedule audits based on the OFCCP headcount and capacity in the various regions.

4.     Continue to pursue uniform training of staff for consistency of audits across regions.  

5.     Improve the OFCCP compliance assistance.

6.     Provide better and consistent guidance for federal contractors to follow for compliance.

These recommendations are nothing new, but they do follow the current administration’s lack of critical review of executive agencies’ actions.  As for the first recommendation, the recommendation is for predictive technology to identify audit targets.  Any implementation will likely incur a lawsuit.  The remaining recommendations are essentially the administration’s request for more money to restructure how the agency does it job in the future; again nothing new.  It is surprising that the GAO appeared not to take a very critical view of the Congressional request, but emphasized (regardless of the truth) that federal contractors caused most issues.

As David Cohen, president of DCI, states, “If I was the head of OFCCP, I would close every single local office and only have regional offices.  I would also cut the staff down to 50 people per region and cut the national staff as well.  The staff would be front line investigators and the rest would be I/O psychologists, labor economists, IT specialists and lawyers.  I would automate everything and deploy my experts when there was evidence of real systemic discrimination.  The current model is clearly not working.”



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