On December 2, 2010, the Office of Federal Contract Compliance Programs (OFCCP) issued Directive 292, discontinuing Active Case Management (ACM) Procedures that were previously outlined in Directive 285.
The main purpose of the ACM was to concentrate OFCCP resources on identifying cases of systemic discrimination by means of an abbreviated desk audit and to then close reviews quickly where no indicators, so OFCCP resources could be used more efficiently. Full desk audits were only conducted on every 25th review and on-site reviews were only conducted on every 50th review. The ACM process was discontinued because it narrowed OFCCP’s enforcement efforts.
To replace the ACM procedures, the OFCCP issued Directive 295 on December 16, 2010 outlining the principles and procedures for its newest enforcement initiative, Active Case Enforcement (ACE). The new directive broadened the scope for conducting Supply & Service (S&S) compliance evaluations. The new directive can be found at: http://www.dol.gov/ofccp/regs/compliance/directives/dir295.pdf.
Effective January 1, 2011, all contractors are subject to the provisions of the new ACE procedures. Unlike the ACM which utilized compliance reviews only, the ACE will now conduct compliance evaluations that will consist of any one or combination of the following:
(1) Compliance Review – most common investigation procedure used to analyze and evaluate the hiring and employment practices, AAPs, and results of the affirmative action efforts undertaken by the contractor, which may consist of one or more of the following stages:
- desk audit,
- onsite review, or
- offsite analysis.
(2) Offsite Review of Records – used to analyze and evaluate AAPs, supporting documentation, personnel policies, and employment actions to determine compliance with the regulations.
(3) Compliance Check – used to determine whether appropriate records have been maintained.
(4) Focused Review – an onsite review used to focus on one or more aspects of the contractor’s employment practices.
The Federal Contractor Scheduling System (FCSS) will be used to select contractors for compliance evaluations. The names of the contractors and corresponding establishments will appear on lists to be used by each of the OFCCP offices. The lists will also indicate which type of compliance evaluation will be conducted.
A full desk audit will be conducted in all compliance evaluations to ensure compliance of the contractors EO 11246, Section 503, and the VEVRAA AAPs. For quality control, a full compliance review will be conducted for every 25th establishment on the FCSS list.
Once a contractor is selected for a compliance review, the OFCCP will mail the scheduling letter. The compliance officer will contact the Equal Employment Opportunity Commission (EEOC) and the State and/or Local Fair Employment Practice (FEP) to determine the nature, status, and outcome of any complaints that have been filed against the contractor at the establishment under review. Using the OFCCP internal database, compliance history for the past three years will be reviewed to determine if there are patterns of non-compliance with the EEOC, State or local FEP, and/or other labor and employment agencies.
During a desk audit, compliance officers will determine if an onsite review is necessary, looking for indicators of potential discrimination or violations. Indicators of potential discrimination may be of an individual and/or class nature, consisting of two or more victims, which is a big shift from the previously required 10 or more affected class members. In addition to statistical and anecdotal evidence, indicators of potential discrimination/violation also include, but are not limited to: patterns of individual discrimination, patterns of systemic discrimination, patterns of major technical violations such as recordkeeping deficiencies or failure to maintain an AAP, and non-compliance with other labor and employment laws.
If no indicators exist, the compliance officer may close the compliance review at the conclusion of the desk audit. However, if the AAP and supporting documentation are insufficient, indicators of potential discrimination/violation are found, or the review was designated as a quality control review or focused review, the compliance officer will continue to the onsite stage of the evaluation. The onsite review is not limited to the nature or scope of indicators. During the onsite, compliance officers will verify compliance with Executive Order 13496, which requires notification to employees of their rights under the National Labor Relations Act.
At the conclusion of the review, OFCCP will close the audit if there are no apparent violations or discrimination and will issue the Closure for No Apparent Violations or Technical Violations letter. If violations and/or discrimination were remedied through a conciliation agreement, the compliance officer will issue the Closure Letter for Substantive Violations. Show Cause Notice procedures are authorized if the contractor denies OFCCP access or refuses to provide any requested information.
Contractors that are selected by the FCSS for an investigation procedure other than a compliance review (i.e. Offsite Review of Records, Compliance Check, or Focused Review) must still submit their AAPs and support data for a full desk audit. If indicators of discrimination are found, other investigations procedures may still be utilized, including a full compliance review. If no indicators of discrimination are found, the compliance officer will close the evaluation and issue the Closure for No Apparent Violations or Technical Violations letter.
According to the ACE directive, contractor establishments that have undergone a compliance evaluation will be exempted from selection for another compliance evaluation of any kind for 24 months following the date of closure of the compliance evaluation.
Please contact us by calling (732) 446-2529 or sending us an e-mail at glennbarlett@gbcs.net if you are interested in in additional information regarding the Active Case Enforcement procedures.