To Respond To Contractor Concerns About The Timeliness And Transparency of Compensation Audits, OFCCP Issues “What Contractors Can Expect”

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By: Connie N. Bertram

On August 2, 2018, OFCCP issued a publication called "What Contractors Can Expect ." The document provides "the general expectations that often guide interactions between federal contractors and OFCCP." The publication was designed to address concerns of the contractor community concerning the lack of transparency and consistent standards and to improve OFCCP’s relationship with contractors and others regulated by OFCCP.

  • Access to Accurate Compliance Materials.  OFCCP states that it is "committed to providing clear, concise, and practical compliance assistance" in the form of "technical assistance guides, factsheets and brochures, 'Frequently Asked Questions' or FAQs, guidance documents, directives, webinars, and email."  Since the issuance of the publication, OFCCP has issued a series of Directives designed to provide additional information concerning the procedures and standards that apply during compliance reviews and adopted an Ombud program to address contractor concerns.

  • Timely Responses to Compliance Assistance Questions.  The publication states that "[c]ontractors can typically expect a reply to Help Desk inquiries and emailed compliance assistance questions within 3-4 business days." Where more time is needed, contractors "can expect that OFCCP will provide notice of the delay and assurance that OFCCP's reply, when provided, is responsive to the issues raised."

  • Opportunities to Provide Meaningful Feedback and to Collaborate.  OFCCP states that contractors "can expect OFCCP to provide them with opportunities to submit feedback on the quality and quantity of the agency's compliance assistance offerings and, periodically, on their experiences during their most recent compliance evaluations."  OFCCP also indicates that it will engage with contractors "on the development of new compliance assistance material, contractor training, and other matters that may support contractor compliance."  Consistent with this expectation, Ms. Bertram was consulted during the conference by a member of OFCCP's National Office regarding Ms. Bertram's experiences working with the member's program and how the program's performance could be improved. OFCCP has also reached out to representatives of the contractor community to obtain their feedback.

  • Professional Conduct by OFCCP's Compliance Staff.  In response to criticism about what many contractors perceive to be heavy-handed or unfair tactics, OFCCP states that contractors "can expect to receive prompt, courteous, and accurate information during compliance evaluations and complaint investigations."  However, OFCCP notes that professional courtesy works both ways, as "the perceived quality of an engagement with OFCCP staff can be influenced by several factors, including the specificity and accuracy of the information contractors provide, and the timeliness and thoroughness of their responses to document production requests during compliance evaluations and complaint investigations."

  • Neutral Scheduling of Compliance Evaluations. OFCCP states that contractors "can expect OFCCP to use a neutral selection system to identify contractors for compliance evaluations." Addressing concerns raised at its recent town hall meetings, OFCCP emphasized that "individual contractors are never 'targeted' though OFCCP may focus its resources on particular industries or sectors, geographic regions, or types of employment practices," and that "OFCCP never schedules a contractor for a compliance evaluation because that contractor sought compliance assistance."

  • Reasonable Opportunity to Discuss Compliance Evaluation Concerns. The publication also states that contractors "can expect to have a reasonable opportunity to discuss issues that may affect the progress or results of their compliance evaluation or complaint investigation." OFCCP encourages contractors to use the chain-of-command, starting with the local compliance officer and working its way, if necessary, up to the regional or even national level. OFCCP believes that such interactions "can remove uncertainty and clarify areas of misunderstanding."

  • Timely and Efficient Progress of Compliance Evaluations.  Contractors have become increasingly concerned about the length of compliance reviews and the short time-frame provided by OFCCP for responding to information and data requests.  It had become common for OFCCP compliance officers to demand the production of documents within three business days.  The publication states that contractors should expect that they will be provided with "reasonable production timelines ... as determined in light of all relevant facts and circumstances."  OFCCP also commits to providing "clear explanations of OFCCP's compliance evaluation processes and periodic status or progress updates as evaluations progress."  The agency notes that its ability to conduct timely and efficient compliance evaluations is "greatly influenced by the level of cooperation OFCCP receives, and the quantity, quality, and timeliness of the information that contractors provide."

  • Confidentiality. OFCCP states that contractors "can expect that the information they provide during a compliance evaluation will be kept confidential. OFCCP keeps this contractor information, including but not limited to personnel records and salary data, confidential to the maximum extent allowed by law."

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