Is your affirmative action plan (AAP) up to date? How about your supporting documentation? Have you reviewed the latest requirements for interviews, job applications, vendor and supplier nondiscriminatory certifications, applicant flow logs and statistical analysis factors for utilization of minorities?
Is your workforce underused in any job group? Are your immigration I-9 forms properly completed? Are your production floor, restroom, entry doors and employee work areas providing sufficient Americans with Disabilities Act (ADA) access for disabled applicants, visitors and employees?
Is your corporate leave policy consistent with the Family Medical Leave Act (FMLA)? Does your attendance policy exclude any FMLA-qualifying leave from disciplinary action? Have you held a sexual harassment and/or EEO awareness seminar for your employees within the past two years?
Without an effectively implemented and documented AAP commitment and plan, covered employers doing business with the federal government risk:
• Frontpay and backpay (lost wages and benefits) awards for qualified minority applicants who were not hired or who encountered discriminatory employment practices or benefits;
• Injunctions against illegal personnel programs or practices;
• Employment of minorities illegally rejected;
• Reimbursement of governmental investigation costs;
• In aggravated cases, cancellation of the employer's contracts; and
• A declaration of ineligibility for future contracts until compliance is achieved.
The OFCCP's current desk audit and on-site review procedures are growingly intensive. They may consume hundreds of hours of management time. Any program out of date in this arena could easily trigger a major monetary award and a conciliation agreement or court prosecution seeking complete revision of a covered employer's personnel policies and practices.
For example, such an employer could be ordered to pay for an ADA audit of plantsite accessibility for disabled applicants or employees and pay for all plantsite structural changes needed. These might include ramps to plant doorways, bathroom stall construction or remodeling, and doorbell additions.
Working as part of the U.S. Department of Labor, the OFCCP is seeking a 1998 budget of $68.7 million to add 101 new full-time equivalent positions and computer technology for enforcement offices. The agency plans to target "patterns and practices of discrimination" in companies required to have an AAP program. It plans to combat national origin discriminations by sharing data on immigration document abuse and class-action type pattern complaints with the Justice Department.
Testers Are Coming
In a move certain to continue controversy, the OFCCP concluded in a report that sending "testers" into workplace is a cost-effective way to target federal contractors who may be treating job applicants differently because of race, gender or ethnicity. The agency recently completed tester use programs in
Washington D.C. workplaces and now plans to spread their use to workplaces in Chicago and San Francisco. Testers used so far were white and black male job seekers with similar education and job experience. They are sent in targeted workplaces to compare which, if any, group gets job offers and which group gets excluded or mistreated.
Testers help the OFCCP classify employers into one of the three enforcement categories:
1) Those with hiring practices that comply with key OFCCP regulations,
2) Those with hiring practices that warrant further investigation and
3) Those warranting enforcement action.
Preparation Steps
To minimize the significant legal and monetary remedy risks of an OFCCP audit, employers doing business with the government and who are required to have an affirmative action plan should
a) have their labor counsel review the AAP and related documents such as job applications and employee handbooks, b) provide sexual harassment training for all employees, c) have an ADA knowledgeable consultant conduct an ADA facilities accessibility selfaudit and d) remedy any deficiencies.A good starting point to review the OFCCP's technical manual on AAP documents needed. If you would like a copy, contact Ehlke Law offices.