With its formidable name, the Office of Federal Contract Compliance Programs, and the full clout of the federal government behind it, the OFCCP is well equipped to monitor and enforce its mandate that every vendor awarded a contract with the Federal government fully complies with the intent and the letter of the various laws intended to promote affirmative action for minorities, the disabled, veterans and all the other protected classes.
In the past, this compliance was a somewhat arduous task but still doable for most companies. However, the recent changes in the laws and in how they are administered have made the process far more problematic for companies large and small. Here is just some of what you need to know when developing a proactive affirmative action plan for your company so as to avoid the pitfalls of an audit:
First, Understand Your Peril
The aggressiveness of the OFCCP cannot be overstated. Good intentions just do not carry any weight with the bureaucrats in this office under the current administration. There are never any discussions anymore about whether a ruling by the OFCCP is correct or not. Typically, their response is “my way or the highway” and you better be prepared to cooperate. In short, if the OFCCP can tag you with a fine, they will and their next negotiating position is, “pay up” and maybe we won’t fine you to any further extent.
Second, Evaluate the Impact on Every Employee
Naturally, most employers will concentrate their affirmative action efforts on the protected classes listed in the law. Unfortunately, this effort will not insulate an employer from being targeted by non-protected employees. In one particularly notable instance, Goodwill Industries of SoCal – an institution not known for its predatory or even unsavory practices – was fined and made to pay back wages to white males for discriminating against them in favor of females during the hiring process. It is essential that you, as an employer, remain even-handed in your practices across the entire spectrum of potential hires.
Third, Delineate Your Policies
The first place the OFCCP looks when it audits a company is at its stated policies. The lack of one is not an excuse and is actually counted against you as a case of willful negligence. In particular, the government is looking for an EEO policy, an anti-harassment policy, a family leave policy, an accommodation policy as well as an affirmative action policy – all revisited and updated within the last year.
Next, Review Your Compensation Practices
As this area is the one most likely to produce a complaint from an employee, your administration of the compensation process should be absolutely up to snuff. You will most likely be asked to describe your compensation plan, how hiring and promotion decisions are made, what factors influence pay, who are the decision makers and, most importantly, to explain any anomalies in compensation that are uncovered during the audit. It is highly desirable to have these questions already answered before the OFCCP shows up at your door.
Lastly, Develop a Superior Audit Trail
As already mentioned, the OFCCP will not just accept your word that you are complying with their mandates. As such, your company must develop the proper procedures not just for the process itself but also for documenting your actions. In particular, they will want to see written examples of job descriptions, compensation data, subcontractor lists and a copy of the employee handbook. In addition, you will most likely have to show how your company has made reasonable accommodation for the handicapped and provide an overview of your new hire orientation as well as your termination process and the accompanying logs.
A Final Thought
Administering a good AAP takes time and energy that may be better spent by you and your staff on growing and managing your core business. For this reason, make sure your HR software system has all the bells and whistles you need to get you the data and metrics to manage the situation as effortlessly as possible.
