In its recent report on Diversity in the Technology Sector, the GAO made three recommendations related to OFCCP’s audit procedures. The report outlines detailed recommendations to both EEOC and OFCCP, but our focus in this blog are the recommendations for OFCCP during the course of a compliance evaluation.
OFCCP Process and Procedural Background from the Report
The report noted that, “according to officials”, OFCCP does not currently use type of industry as a selection factor for an audit (although DCI has reasons to believe this factor has been used in the past for audit selection). The report outlined some interesting facts about OFCCP audit enforcement:
- Less than 1% of OFCCP’s 2,911 technology contractor compliance evaluations from fiscal years 2011-2016 resulted in discrimination violations, though 13% resulted in other technical violations such as recordkeeping.
- OFCCP officials in the Pacific Region indicated to GAO that they are hiring compliance officers with legal training to better address the technology sector, in addition to creating centers of excellence in San Francisco and New York.
- It is of interest that compliance officers with legal training would only be needed for the technology sector, and leaves other contractor industries wondering why better trained compliance officers are not useful for their compliance reviews.
The report also noted that OFCCP faced challenges in oversight due to reporting delays from federal contractors. The report indicates that:
“…{OFCCP} has not yet evaluated whether its own policies and practices also impede its efforts to hold federal technology contractors responsible” and that “OFCCP officials acknowledged there may additionally be delays in their own review processes.”
OFCCP officials have informally discussed how to adjust work that reflects today’s economy given virtual work sites, workplace flexibilities, and other nontraditional forms of employment relationships. However, there has been no formal or official evaluation of the establishment-based compliance review process, and GAO notes that OFCCP could be missing opportunities to identify other practices to review a contractor’s workforce holistically. One such opportunity is to review based on Functional AAPs (FAAPs) for companies that no longer find value in establishment-based plans.
The GAO recommendations related to OFCCP audits included:
- OFCCP should analyze its closed audits to better understand the delays that occur in receiving and processing contractor information (e.g. affirmative action plans).
- OFCCP should study whether considering disparities by industry would increase OFCCP’s accuracy in predicting the contractor establishments at greatest risk of noncompliance and then focusing its audit efforts on those establishments.
- OFCCP should evaluate how it currently identifies establishments to audit and determine whether modifications are needed to reflect current workplace structures and locations or to ensure that subcontractors are included.
As can be seen from these three recommendations, the GAO believes that OFCCP should be able to more accurately select contractors for audit rather than wasting resources on the 98% of audits that do not result in findings of discrimination. The GAO suggests that the current focus on establishment-based audits may not reflect how businesses currently operate and make decisions.
Please read our accompanying blog that identifies opportunities to alter requirements for OFCCP data submission items including racial subgroup break-outs and differing availability metrics.
By Joanna Colosimo, Director of EEO Compliance, and Mike Aamodt, Principal Consultant, at DCI Consulting Group
