OFCCP recently mailed a new batch of Corporate Scheduling Announcement Letters (“CSALs”) to unlucky companies that are on the short list to be audited later this year. Consistent with its recent practice, the notices are addressed to the “Human Resource Director” at local establishments as opposed to the company’s corporate headquarters.
What You Should Do
The first thing you should do is notify your local human resources personnel to be on the lookout for a CSAL from OFCCP. Although a compliance review doesn’t technically begin until OFCCP sends the official scheduling letter, receipt of a CSAL pretty much guarantees that the scheduling letter will follow.
Once it has been determined that your company received a CSAL, you should begin preparing for the compliance review immediately. It is important to understand that when the official scheduling letter arrives, you will only have thirty days to respond to OFCCP’s standard audit requests. Responding to OFCCP’s standard audit requests means, among other things, providing copies of your affirmative action plans as well as raw data concerning your applicants, hires, promotions, terminations and employee compensation. Thirty days is typically not enough time to ensure your plans are in proper order or to confirm the accuracy of the raw data you will be required to disclose. Both are crucial steps if you are hoping to contain risk and have a smooth audit with as few follow-up requests from OFCCP as possible.
Should You Contest OFCCP’s Jurisdiction?
Receiving the CSAL in advance also gives you more time to consider whether your company has been appropriately selected for audit. OFCCP is required to use a neutral selection process and its jurisdiction extends only to federal contractors and covered subcontractors. Whether a company is a federal contractor or covered subcontractor is not always easy to determine, especially in the health care industry where these definitions remain the subject of unresolved litigation. Whether in the health care industry or not, if you don’t believe your company is a federal contractor or covered subcontractor, you will want to have your reasons and supporting arguments prepared in advance. You will also want to have carefully considered the pros and cons of contesting OFCCP’s jurisdiction as OFCCP typically won’t retreat easily. These are complicated questions and analyses that are best addressed with legal counsel experienced in OFCCP jurisdiction matters.