The onsite visit by OFCCP clearly is for the purpose of gathering evidence in the event they will administratively prosecute the contractor. It is important that the contractor ensure that they have retained duplicate copies of all documents presented/requested by OFCCP. This should include a list of managers/supervisors and employees that were interviewed. The types of questions that were asked of managers/supervisors and specific documents that were requested. OFCCP will verify information that is presented in your Affirmative Action Plan during this phase.
You will need to identify the focus of the audit.
Following the onsite visit by OFCCP, they will begin an "off-site" review of documents, data and interview notes obtained during their onsite visit. It is important that managers/supervisors understand that you have an affirmative action plan and what their affirmative action responsibilities are. OFCCP may request additional information from you during the off-site review.
At this point one of two things will happen:
-The audit could be closed due to no violations being found. If this is the case you will receive a letter of compliance from OFCCP.
-If violations are found you will receive a Notice of Violation (NOV)
Should OFCCP find alleged violations they could be technical in nature and require you to modify a practice such as the collection of race and gender from applicants or enhancing your outreach efforts for veterans or individuals with disabilities. There are no financial penalties or fines for this type of technical violation. At this point you will most likely enter into a Conciliation Agreement (CA) with OFCCP. You will need to submit reports to OFCCP demonstrating that you have implemented the suggested corrections. This could include submitting your affirmative action plan during the period of time the CA references.
In the event the NOV alleges discrimination due to a pattern in practice or adverse impact from data you provided in your affirmative action plan that infers systemic discrimination the employer should clearly understand the issue and ensure that they have demonstrated to OFCCP, via documentation, information that will explain away the allegation. At this point the burden sits squarely with the employer to prove that discrimination did not occur. At this point there is room to negotiate a settlement (if any) buy the employer/contractor. You may wish to have legal council negotiate the settlement with OFCCP or a qualified Affirmative Action Consultant. In the event that you are not able to agree on an amicable settlement with OFCCP, they will most likely refer the matter to the Solicitor of Labor, this does not mean that the Solicitor will accept the case.
If the Solicitor of Labor accepts the matter then an Administrative Complaint will be filed with the Office of Administrative Law Judges and a hearing will be held before an Administrative Law Judge (ALJ). It is strongly recommended that you seek legal council at this point. If you are using an Affirmative Action Consultant they should be able to recommend qualified law firms for you to select representation from and will most likely work with your selected council.
Generally the ALJ will most likely give a strongly recommended decision as well as an order. At the point either party can file exceptions. This case is then heightened up to the Administrative Review Board and can be appealed farther along to the federal courts. Settlements may include debarment from federal contracting, cancellation of all current federal contracts, judgments for backpay and make whole relief, lost benefits and interest, and on occasion front pay. Damages are most likely to include prospective relief such as hiring, promotion, reinstatement and/or increases in compensation. .
The majority of NOV's are settled via a CA at the OFCCP's District Office and never advance to the Solicitor's Office, therefore never being heard before an ALJ. Under the current administration we have seen an increase in both CA's and the number of administrative matters. OFCCP is aggressive when negotiating. The reason for this is that there are benefits for each office and the Compliance Officer if they are able to demonstrate that they have recovered financial remedies from contractors/sub-contractors.