Practice Areas: Labor & Employment

Affirmative Action and OFCCP Compliance Reviews

The Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has confirmed what many federal government contractors and subcontractors have been finding out the hard way. In fiscal year 2008, the OFCCP’s enforcement efforts led contractors to pay a record $67,518,982 in back pay and other benefits to 24,508 applicants and employees. This total represents a 133% increase in OFCCP yearly recoveries since FY 2001.

In 2009 and 2010, the Obama Administration significantly increased OFCCP’s budget and hired additional compliance officers and solicitors to initiate even greater enforcement efforts against contractors. A further indication of the Administration’s increased emphasis is that a recent reorganization at the Department of Labor has placed OFCCP in a direct reporting relationship with the Secretary of Labor.

A History of Experience

Given the enforcement trend noted above and the OFCCP’s focus on systemic discrimination cases, contractors are increasingly seeking skilled counsel to provide guidance on affirmative action matters.

McGuireWoods has more than 40 years of experience helping federal government contractors and subcontractors comply with the detailed regulations promulgated by the OFCCP, dating back to the signing of Executive Order 11246 in 1965 and the founding of the Office of Federal Compliance Contracts (the predecessor to the current Office of Federal Contract Compliance Programs – OFCCP). Our affirmative action team can assist you with affirmative action plan design, preparation and implementation and related audit defense. We can also prepare and analyze the various statistical reports that are required as part of annual plan reporting.

Affirmative Action Services

McGuireWoods works with contractors to develop and implement best practices related to affirmative action program (AAP) structure, design, rollout and ongoing compliance implementation. For example, as part of our general affirmative action services, we advise clients regarding legal requirements and strategies related to:

• Evaluating jurisdiction to determine whether, and to what extent, companies are subject to OFCCP requirements;
• Determining who is and who is not an “applicant” under OFCCP rules;
• Collecting and analyzing employment data for AAPs;
• Soliciting race and gender information from candidates;
• Designing paper and electronic application systems for appropriate tracking of job candidates and related decision stages;
• Developing tailored disposition codes for tracking outcomes regarding expressions of interest and “applicants” considered by contractors;
• Implementing employee selection and testing procedures that comply with the Uniform Guidelines;
• Deciding which employees should be included in which AAP;
• Instituting legally sufficient record retention programs;
• Preparing analyses that comply with OFCCP regulatory requirements without needlessly making admissions against a company’s interests;
• Compiling privileged adverse impact analyses and providing advice regarding potential corrective measures.
• Evaluating, defending and revising compensation systems;
• Training contractor staff to update and monitor employment tracking and compliance efforts; and
• Identifying referral sources and resources for contractors to satisfy outreach and accommodation obligations for qualified veterans and individuals with disabilities.

Audit Defense

Our affirmative action team includes partners, associates and paralegals whose practices focus on OFCCP matters. Using our internal resources, computer programs and experienced paralegals, we efficiently create AAPs and conduct availability and adverse impact statistical analyses.

The team also provides expert counsel and a vigorous defense for contractors during OFCCP compliance reviews. We prepare clients for OFCCP audits, respond to desk audit requests, and defend on-site reviews. When compliance problems have been identified, we have extensive experience negotiating conciliation agreements successfully with OFCCP offices in various regions throughout the country, as well as with national OFCCP officials. In addition, when conciliation is not in the best interest of our clients, we aggressively and successfully defend contractors in DOL enforcement proceedings.

Consulting Services and Government Relations

In addition to our legal team’s practical expertise with OFCCP regulations and audits, our federal contractor clients are well served by the extensive contacts and knowledge of the firm’s government relations team at McGuireWoods Consulting. This team brings an insider’s perspective on how politically-influenced enforcement priorities are set, and by whom. And, unlike other law firms, our government relations team works closely with Democrats and Republicans. The team works tirelessly to build relationships, gather information, analyze opportunities and solve problems for clients.

Representative Work

Our most recent experience is exemplified by the following engagements:

• Guided an international manufacturer with 85,000 employees at more than 100 locations in 27 countries in the development and updating of their affirmative action plans at all U.S. establishments. We have also successfully defended this contractor in multiple OFCCP compliance reviews, including defending on-site reviews and successfully representing the company in innovative conciliation agreement negotiations. We have also worked with this client and others to implement a tailored information technology system to properly collect, track, analyze and report data related to its AAPs.
• Successfully defended a regional financial institution with assets of $4.9 billion during multiple on-site compliance reviews and the resulting favorable conciliation agreement negotiations and implementation.
• Excluded manufacturing and distribution companies from alleged OFCCP jurisdiction under single entity and other theories.
• Litigated on behalf of a major national bank against ongoing OFCCP challenges to its non-discriminatory hiring practices.
• Collaborated with IO psychologists and testing experts to structure nationwide employment testing programs that comply with the Uniform Guidelines on Employee Selection Systems.