OFCCP's TAG Part 13: Preparing for a Compliance Review

By: Sheryl Harmening

This blog discusses the following three areas as covered in the TAG:

1. The process for scheduling a review,
2. The different investigative procedures for the review and
3. What contractors can expect during a compliance evaluation process.

Process of Scheduling a Review:

Each year, sometimes twice a year, OFCCP publishes a Corporate Scheduling Announcement List (CSAL). As stated in the TAG, The CSAL is generated based on a neutral selection process and lists the contractor establishments that will be scheduled for a compliance review. The list is published on OFCCP’s website along with the methodology used to generate the list. If a contractor’s establishment appears on the CSAL, the contractor can expect to receive a formal Scheduling Letter to schedule the compliance review. A contractor has 30 days from the receipt of the Scheduling Letter to submit its Affirmative Action Plans (AAPs) and supporting documentation, under the itemized listing, to the agency.

Investigative Procedures:

The TAG states that OFCCP may use one or more investigative procedures to conduct a compliance evaluation. These procedures include:

1. Compliance review
   A compliance review includes a detailed evaluation of the contractors written affirmative action program, and results of the affirmative action efforts. 
   
   
2. Off-site review
   An off-site review includes an evaluation of the contractor’s written AAPs and supporting documentation related to personnel policies and procedures to determine if the contractor complied with all the requirements of the regulations as applicable under Executive Order 11246, Section 503, and VEVRAA.
   
   
3. Compliance check
   A compliance check includes determining whether the contractor maintained certain records applicable under 41 CFR 60-1.12 (Executive Order 11246), 41 CFR 60-741.80 (Section 503), and 41 CFR 60-300.80 (VEVRAA).
   
   
4. Focused review
   A focused review focuses on one or two specific aspects of the contractor’s organization or employment practices. For instance, OFCCP may conduct a Section 503 review that focuses on policies, procedures, and practices related to Section 503 compliance.

The TAG further notes that OFCCP Investigators from regional, district and/or area offices may conduct these evaluations and that contractors must be prepared to have an officer of their company entrusted with the responsibility to make policy decisions, take corrective actions, and, as needed, be available during the evaluation process.

What does OFCCP look for during a compliance review?

The TAG notes that to prepare for a compliance review, contractors can conduct a self-audit as part of their AAP process. It specifically states that contractors should be prepared to provide documented evidence in the following areas:

External notices:

• “EEO is the Law” poster (and supplement) and Pay Transparency Nondiscrimination Provision is conspicuously displayed at all establishments (Please note: the “EEO is the Law” poster and poster supplement have been replaced by “Know Your Rights: Workplace Discrimination is Illegal” poster)
• EEO policies and affirmative action obligations are shared with unions.
• Equal opportunity clause is referenced in contracts and purchase orders.
• Equal opportunity tagline is included in job advertisements.
• Employment service delivery systems are notified for referrals of protected veteran applicants.
• Applicants and employees are provided with a notice that AAPs are available to review on request.
• Local recruitment sources and community organizations are provided with notification of the contractors EEO policies and affirmative action obligations.

Internal notices:

The EEO policy is included in the handbook and other internal materials and EEO policies and AAP obligations are posted conspicuously.

Outreach and recruitment efforts:

All sources of recruitment and outreach efforts adequately reach out to women, minorities, protected veterans, and individuals with disabilities.

Record keeping:

All personnel records tied to applicants, promotions, and terminations are properly maintained and there’s a system in place to for women, minorities, individuals with disability and protected veterans to provide voluntary self-identification.

Validation of selection procedures:

All formal selection procedures, such as employment tests and structured interviews are evaluated to ensure they do not cause adverse impact against women and minorities. Selection procedures that cause adverse impact should be validated to ensure they are representative of the job being performed and are valid predictors of job performance.

Training:

All employees are provided with the same opportunities for training, including selection in apprenticeship programs, without regard to the employees’ protected characteristics.

Auditing Personnel Operations:

Written policies and procedures are audited and do not have a discriminatory effect on women, minorities, individuals with disabilities or protected veterans. All written job criteria used are job-related.

Compensation practices:

There are no disparities in compensation based on race, ethnicity, gender, status as a protected veteran, or as an individual with a disability. There are no differences in starting pay based on being part of a protected group. Additionally, women are not steered towards lower paying jobs.

Personnel Practices:

• All hiring procedures are consistent and performed in a non-discriminatory manner.
• There is no disparity in termination rates for women, minorities, individuals with disabilities, and protected veteran groups versus their counterparts.
• All employments benefits such as medical and life insurance, profit sharing, bonus plan, etc. and all equal employment opportunities are provided without regard to race, gender, or status as an individual with a disability and protected veteran.

Sex Discrimination and Harassment:

• All employment policies and procedures do not discriminate or have an adverse impact based on sex.
• Selection decisions for hiring, promotion, and termination are made without regard to pregnancy, childbirth, or related medical conditions.
• Women are not excluded from certain jobs based on personal belief of safety and suitability for women.
• Reasonable accommodation is provided based on applicable laws for pregnancy, childbirth, and related medical conditions.
• Policies and procedures are implemented to prevent harassment based on race, color, religion, sex, sexual orientation, gender identity, national origin, disability, and status as a protected veteran.

Religion/national Origin:

• Employment practices, policies and procedures do not discriminate based on a person’s religion or national origin.
• Reasonable accommodations are provided for observance of religious practices unless the accommodation causes undue hardship for the organization.

Retirement Policy:

The company’s retirement policy does not differ based on membership in a protected group. The policy is consistently applied for all individuals without regard to race, sex, or status as an individual with a disability or protected veteran.

In the upcoming final part of this series, we will dive deeper into the compliance review process and different types of OFCCP audits.