Please Refer to the CBA: Recent OFCCP Audits Focus on Pay Practices for Bargaining Employees

This is the second blog in our series on Steering and OFCCP enforcement.  As discussed in our first blog of the series, OFCCP has focused on investigating compensation as a byproduct of steering during compensation reviews.  Toward that end, DCI has noted an interesting increase in compensation requests that parallel job placement concerns.

One recent trend that is particularly noteworthy involves OFCCP requests for detailed compensation information for bargaining unit employees. Because contractors have limited control over pay decisions for CBA-covered employees, the recent OFCCP focus on compensation for this group of employees is puzzling. One possible explanation is that OFCCP is investigating compensation for CBA-covered employees in an attempt to make a case for steering.

Specifically, DCI has observed the following OFCCP requests involving CBA-covered employees:

• Job title at hire
• Job group at hire
• Last employer prior to coming to the company
• Performance ratings for prior two years (even though the CBA indicates performance evaluations are not administered for unionized employees)
• Education level (for entry level manufacturing and warehouse positions)
• Hire and rehire dates
• Industry start date (date of entry into the union)
• Each pay rate earned during the review period and associated job assignments with total hours worked
• Overtime rates
• Termination dates, where applicable

Even though pay practices for CBA-covered employees are described in the CBA, DCI has noted that OFCCP is often unclear of the factors affecting compensation for these employees. Specifically, OFCCP has made repeated requests for information that has no bearing on pay practices even after the contractor has communicated that these factors are not relevant to pay.

Below are several DCI best practices for evaluating bargaining employees and handling OFCCP information requests for this group:

• Ensure pay increases are consistently applied based on level of service, or the other terms of the CBA
• Ensure contractor communicates the factors that are, and are not, relevant to pay, as evidenced by the CBA
• Refer OFCCP back to the CBA, where appropriate, to address pay-related questions

By Rachel Gabbard, M.A., HR Analyst, and Joanna Colosimo, M.A., Senior Consultant, DCI Consulting Group