by Keli Wilson and Marcelle Clavette, DCI Consulting Group
Out with the old “Active Case Management” (ACM) and in with the new “Active Case Enforcement” (ACE) imposed by Patricia A. Shiu, Director of the Office of Federal Contract Compliance Programs (OFCCP). The Active Case Enforcement procedures make the previous directive obsolete and outline the revised protocol compliance officers will follow during a compliance evaluation. This directive is being immediately enforced by OFCCP due to a retroactive effective date of January 1, 2011.
The OFCCP will continue to use the Federal Contractor Selection System (FCCS) to select Supply and Service establishments for a compliance evaluation and pass the selected contractors to their respective Regional/District/Area office for audit (to be reviewed in “strict sequential order”). However, one change to note is the list of establishments will now be assigned to one of four types of investigative procedures; compliance review, off-site review of records, compliance check, or focused review. It is also important to note that the ACE does not offer any guidance as to how many contractors will be selected for each of the four investigative procedures.
If selected for a compliance review, a contractor can now expect the following to occur:
- Investigation of complaints at the establishment with the Equal Employment Opportunity Commission (EEOC) and the State and/or Local Fair Employment Practice (FEP);
- Full desk audit review (EO 11246, Section 503, and VEVRAA);
- Review of compliance history over previous three years; and
- Onsite review if the compliance officer can’t determine compliance through the AAP or supplemental documents submitted or if there are any indicators of potential discrimination or violation (unless it’s a minor technical violation with no indicators of potential discrimination).
Of particular interest is the new definition of a “pattern” of discrimination. As defined in the ACE, OFCCP defines an indicator of potential discrimination of a class as two or more victims. This is a monumental shift from what constituted a “pattern” under the ACM directive, which listed the potential affected class size as being 10 or more applicants/workers. Also, an additional change that OFCCP has now documented is that even one individual could indicate potential discrimination and initiate further investigation. Furthermore, a “patterns of individual discrimination is a new terms used in the ACE. What do these terms actually mean? What is the difference of a pattern of individual discrimination versus a pattern of systemic discrimination? Historically, the courts have defined a pattern or practice using some sort of statistical significance testing (e.g. Hazelwood, Teamsters, etc.). More clarification from OFCCP may be necessary.
If selected for an investigative procedure other than a compliance review (e.g., off-site review of records, compliance check, or focused review), the contractor will be required to submit the AAP and supporting documentation for a full desk review. The new ACE does promise to provide contractors with closure letters for those audits that are found to have: no potential discrimination and no unresolved minor technical violations, as well as major technical violations resolved or discrimination remedied through a conciliation agreement. Each of these four audit outcomes has a specific closure letter that compliance officers are instructed to use (but a contractor may be rewarded with an optional paragraph inserted in their closure letter applauding the “cooperation and courtesies” extended to OFCCP). However, as before, if an audit is deemed unsuccessful because a contractor has denied OFCCP access or refused to provide requested information, the compliance officer will initiate show cause procedures.