Navigating an OFCCP Audit

In my previous blogs, I've discussed wage and hour requirements and the elements of a compliant AAP. But what should you do if you've received the dubious honor of being selected by the OFCCP for an audit? Read on.

Under the OFCCP's new Active Case Management system for conducting non-construction compliance evaluations, all compliance reviews now begin with a standard desk audit.

If you receive notice of a desk audit, you will need to send a copy of your AAP (both the plan for females and minorities and the plan for veterans and individuals with disabilities) for the current plan year, as well as the items on the listing attached to the letter (11 total). This includes activity data for the first six months of the current plan year if you receive the audit letter in the second half of your plan year. The AAP and supplemental data to be sent is based on the address where the audit letter is sent; that location is the "establishment" that is being audited.

The itemized listing of data/information to be sent also includes:

• compensation data for all employees included in the AAP,
• copies of any bargaining unit contracts; and
• copies of the last three years of EEO-1 filings
  

You will have 30 days from the receipt of the letter to provide the current AAP and the additional information requested. Once the response package is received at the OFCCP office that issued the audit letter, they will check to see if all required items are included and will analyze the information provided to determine if there are indicators of "systemic discrimination" (i.e., a potential affected class of 10 or more applicants/workers). If there are no indicators and your AAP is compliant with the regulations, you will receive a closure letter. If there are indicators, a full desk audit will be conducted. This will entail further requests for information and possibly an on-site review. If there is an on-site review, it will likely include a review of I-9 records, interviews of employees and managers, and a review of employment records.

Based on our experience over the past 12 years in support of numerous clients through the audit process, we leave you with the following tips to help you navigate the process:

• Verify that the data you submit is accurate and complete and in full response to the request. It is very difficult to explain away errors in the data submitted.
• Respond in a timely manner to all items listed in the audit letter, as well as additional requests for information, to the extent that they are reasonable requests. If you need more time to respond accurately and completely, ask for it.
• Be ready to explain the non-discriminatory reasons for negative results in the analysis.
• Get your I-9's in order.
• Document your efforts in outreach to veterans and individuals with disabilities.
• Check your workplace and applicant process for accessibility; and your documentation of postings of job openings to state agencies.
• Ensure that you have met your EEO-1 and VETS 100/100A filing requirements.
• Make sure your applicant flow data meets the standards expected by the OFCCP (see the previous blog for details).
• Review your employee files to confirm that they do not contain information that should be in separate confidential files (e.g., medical information, internal investigation reports).
• Prepare a list of accomplishments and good faith efforts for the previous and current plan years.
  

The audit will either be closed out with a closure letter indicating that no violations were found or that only technical violations were found that are easily remedied. If discriminatory practices are found, a conciliation agreement and possible monetary settlement will result.

Here's the good news: once an audit is closed out, you cannot be audited again at that location for two years.

Authored by Dave Waldorf