OFCCP Does Not Need to Follow Neutral Selection Process

By Evan Szarenski and Bill Osterndorf

On July 1, 2022, the Secretary of Labor ruled against Convergys Customer Management Group (now Concentrix CVG Customer Management Group) in a long-running dispute with the OFCCP about the submission of AAPs for desk audit.

In his decision, the Secretary held that OFCCP does not need to show it used a neutral scheduling process to require contractors to submit AAPs and support data for desk audit. 

Secretary Walsh held that to initiate a desk audit, OFCCP only needs to show that the scheduling letter is limited in scope, relevant in purpose, and specific in directive so that compliance will not be unreasonably burdensome. Secretary Walsh also held that OFCCP’s scheduling letter meets these requirements. OFCCP did not need to show that it followed a neutral selection process to require Convergys to respond to the scheduling letter. 

Courts have already held that OFCCP does not need to show a neutral selection process for follow-up data requests (United Space Alliance, LLC v. Solis), and for onsites where OFCCP identified indicators of discrimination during a desk audit (Bank of America v. Solis). If OFCCP does not follow its selection process to schedule the desk audit but seeks to go onsite based on indicators uncovered during the desk audit, a contractor will not be able raise the lack of a neutral selection process as a defense. (This was the exact situation in the Bank of America case.) 

Based on the Secretary’s decision, OFCCP only needs to use a neutral selection process in cases where it seeks to go onsite in the absence of evidence of any violation. Currently, OFCCP only does so in Corporate Management Compliance Evaluations (CMCEs), which made up only 3 percent of the compliance reviews on the FY 22 S&S CSAL. In the other 97 percent of its cases, contractors have no way to challenge the neutrality of OFCCP’s selection process or whether OFCCP actually followed the selection process it did have. 

DCI will continue to monitor and provide updates on all relevant OFCCP and federal contractor news as they occur.

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