Download - Top Ten Contractor Mistakes in OFCCP Audits
Top Ten List of Contractor Mistakes
in an OFCCP Audit
Presented by:
Michelle Duncan, Esq.
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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