On September 24, 2015, OFCCP held a celebratory event in Washington, D.C. to commemorate the 50th anniversary of the signing of Executive Order 11246. Secretary of Labor Tom Perez and OFCCP Director Pat Shiu, accompanied by a panel of distinguished speakers, recounted the history and importance of the Executive Order. To conclude the celebration, Director Shiu presented a two minute video to introduce a “new and different way” the agency would be identifying class members moving forward – through their “Class Member Locator” (CML) website.
In the video, which can be found on the CML website, the narrator introduces four animated characters who represent affected workers in a variety of potential workplace discrimination scenarios (e.g., failing to hire a qualified Asian-American for an engineering position, paying female construction workers less than similarly situated male workers, failing to provide a requested reasonable accommodation to a disabled veteran, and discriminating on the basis of LGBT status when making a promotion decision) and then describes how OFCCP has assisted such workers in obtaining remedies. The final petition in the video urges employees of federal contractors and subcontractors to scroll through the CML website, examine the list of cases published, and notify OFCCP if they believe they may be part of a protected class. Case information is organized in table format and displays contractor name, city, state, time period, affected groups, job, and deadlines by which to contact the agency. Case summaries, conciliation agreements and press releases are provided as attachments as relevant, along with specific contact information for each case.
By sharing case information, OFCCP has increased its level of transparency to the benefit of affected applicants and employees, but this transparency has implications for federal contractors that willingly sign a conciliation agreement. Public disclosure of these cases can impact public relations efforts and negotiation options. Due to the negative publicity that comes with these settlements, companies tend to negotiate in good faith if a press release is withheld on the matter, thereby preserving the reputation of the company while correcting any potential adverse action against class members. Federal contractors may still use this as a negotiation tool, but it is our understanding that the case information will be publically available on the website. Given this new public tool, a mutually beneficial situation for employers and employees/applicants is one in which the employer takes proactive actions to monitor and correct identified concerns before an OFCCP compliance evaluation. However, should you as a contractor enter into conciliatory discussions with OFCCP, it is imperative to carefully review the facts of the case, especially violations cited and remedies expected of you, with your legal and EEO experts to ensure that this information-- which will eventually become publicly reported and accessible-- is accurate.
By Jeff Henderson, M.P.S., HR Analyst and Keli Wilson, M.A., Principal Consultant