When Good Faith is Not Good Enough – Lessons Leanred From OFCCP Audits

In Fiscal Year 2012, 30% of all OFCCP compliance evaluations closed with a technical conciliation agreement. Compare this number to FY 2004, where 5% of all compliance reviews closed with a technical conciliation agreement. A technical conciliation agreement is not a finding of discrimination, but some other violation as it relates to EO 11246, Section 503 of the Rehabilitation Act, and/or VEVRAA. Among others, most of these violations include record keeping and failure to post jobs with the state employment office. However, in FY 2012, approximately 60% of all technical conciliation agreements included a violation for a lack of “good faith efforts” as it relates to women, minorities, individuals with disabilities, and/or protected veterans. Based upon the abovementioned facts, it should be no surprise to any contractor that OFCCP is focused on good faith efforts and will ask to see evidence of good faith efforts during an audit. The biggest question is: when is “good faith” good enough?

Unfortunately, determining what is good enough is a subjective evaluation done by each compliance officer, and there are no established regulatory metrics or standards to determine what is compliant within the regulations. It is frustrating that what is deemed good enough for one compliance officer (even worthy of an award) is deemed not good enough by another compliance officer (worthy of a conciliation agreement). In fact, we have been involved in numerous compliance reviews where the same good faith efforts package submitted to one region has been praised, but when submitted to another region, the OFCCP concluded that it wasn’t “enough” and warranted a conciliation agreement. This is obviously quite frustrating for contractors, and many clients ask, “How can this be?”

Let’s first start with what is required under the regulations. The regulations at CFR 60-2.17(c) state that effective action-oriented programs consist of more than “following the same procedures which have previously produced inadequate results” and demonstrating that good faith efforts were made “to remove identified barriers, expand employment opportunities, and produce measurable results.” However, there is no explicit direction on what and how good faith efforts should be documented. This gives way to a subjective review that may vary, based on the region and/or compliance officer.

As a follow-up to our OFCCP Audit Punch List blog, we wanted to provide you some additional guidance and recommendations that should be considered when preparing the submittal of outreach and good faith efforts.

Clarification on Good Faith Efforts

• Good faith efforts for minorities and females are ONLY required for jobs groups that are underutilized. There is no requirement (although not necessarily a bad idea) to engage in outreach and recruitment for job groups that are fully utilized.
• Good faith efforts for individuals with disabilities and protected veterans are required regardless of underutilization because we do not currently conduct any analyses on these groups.

Best Practices

• Meet with recruitment/staffing at the beginning of the plan year to go over the goals to develop a strategic outreach and recruitment strategy. Document this meeting.
• Develop a corporate good faith efforts binder that centralizes all of the company’s global good faith efforts. The local establishments can use this binder and add in all of the local efforts.
• Keep track of all websites that are utilized for job postings that focus on diversity.
• Maintain receipts for career fairs, job postings, and any related outreach efforts that have an invoice associated with them.
• Measure and evaluate recruiting efforts.
• Take a screenshot of all job postings with the state (provides verification of job postings). If you are using a third party vendor, make sure that they are keeping track of the jobs that they are sending to the local/state employment offices.
• Maintain all contact information for your main points of contact.
• Measure effectiveness of any internal programs that address the expansion of employment opportunities or removal of identified barriers for underutilized groups, individuals with a disability, and covered veterans.

Presentation: Clear and Concise

• Consider presenting a good faith efforts binder to OFCCP upon submission of your affirmative action plan.
• Use the “kitchen sink” approach when it comes to efforts. Include all community efforts, blood drives, United Way, etc., that demonstrate that you are a good corporate citizen.
• Be sure to include and emphasize efforts for protected veterans and individuals with disabilities.

by David Cohen, M.S., President and Yevonessa Hall, M.P.S., Associate Consultant, DCI Consulting Group