OFCCP Prioritized Onsite Investigation Based on Oral Complaints

OFCCP brought a lawsuit against Baker DC, LLC (Baker) alleging denial of access and contractor non-compliance with an ongoing compliance review, and thereby violating Executive Order 11246, Section 503, & VEVRAA. The defendant argued that they were unlawfully scheduled for an onsite investigation based on unsubstantiated oral allegations made at an outreach event. During the hearing, OFCCP denied this claim. They counter-argued that the defendant was selected for an audit via an administratively neutral selection system and OFCCP merely prioritized Baker’s onsite review over other open reviews due to the oral allegations.

To provide a little more context, all mega construction projects, i.e. construction projects with 25 million or more in contract value and a duration of at least one year, are automatically eligible for a compliance review three months into the initiation of the project. Baker was a subcontractor for a mega construction project with project initiation date of November 2015 and therefore eligible before March 2016, when the compliance review began. OFCCP scheduled the onsite in May 2016.

Once eligible for an audit, a contractor undergoes the following four major stages (as outlined in the Federal Contractor Compliance Manual; p. 114):

1. Pre-review preparation: OFCCP notifies the establishment of the review and confirms the date and time of the review. Contractor is notified of the list of documents needed during the review.
2. Onsite review: OFCCP reviews required personnel documents and may also conduct interviews on contractor sites to evaluate compliance with EO 11246, 503 and VEVRAA.
3. Compliance review report: OFCCP prepares a report which includes scope of the review, analysis and identification of any problem areas, and recommendations.
4. Notification of compliance review results: Depending on the findings, OFCCP prepares Letter of No Violation or Notice of Violation.

Taking into account the audit selection process and components of an onsite review phase, the judge ruled in favor of OFCCP. The June 8 ruling stated that the onsite review was not triggered due to oral complaints and does not violate the Fourth Amendment. The court also concluded that the request for additional documents was under the purview of the onsite phase (see phase 2 above) and ordered Baker to comply with OFCCP future requests. Baker faces termination of all government contracts and debarment if they fail to comply with this order. Click here to view the ruling.

By Vinaya Sakpal, HR Analyst, and Rachel Monroe, HR Analyst at DCI Consulting Group