Citing personal experiences of its members, the U.S. Chamber of Commerce has released a harsh critique of the Office of Federal Contract Compliance Programs. The Report, entitled “Office of Federal Contract Compliance Programs: Right Mission, Wrong Tactics,” recommends specific actions the OFCCP should take to improve both its enforcement efforts and its relationship with the contractor community.
Criticisms based on OFCCP’s aggression and antagonism toward contractors
The Chamber begins its Report with this description of the Agency:
OFCCP has become an agency that appears to focus more on garnering splashy headlines and securing high-dollar settlements than it does simply pursuing its admirable, if at times, unglamorous mission. As this white paper demonstrates, OFCCP is too often antagonistic toward the regulated community, ignores myriad and effective diversity efforts undertaken by contractors, engages in overly broad and unreasonable fishing expeditions for employment data, and pursues take it or leave it conciliation efforts.
The encounters of the Chamber’s members with the OFCCP mirror what many of our own clients have also faced. The Report cites numerous examples of abusive or unreasonable actions by the OFCCP during compliance reviews, including the following:
- Demanding that the employer provide enormous amounts of data in a short time frame, rather than working with the employer to narrow the request to focus on data relating to a specific issue
- Unilaterally setting dates and times for on-site investigations without an invitation to discuss legal issues or trying to work with the employer’s schedule
- Refusing to grant extensions of time requested in good faith by employers so that they can respond to document production demands
(Report, p. 3.)
Reasonable recommendations for the OFCCP as it transitions to a new administration
The Chamber’s thorough Report and its ultimate recommendations are based on the history of the OFCCP and its legal foundation and mission. Although lengthy, it is worthwhile reading for anyone who manages affirmative action compliance or handles compliance reviews with the OFCCP. It cogently summarizes and sets forth the concerns that attorneys and practitioners have expressed about the OFCCP for years.
The Chamber’s recommendations include the following:
- Return to a more neutral enforcement agency approach that encourages OFCCP investigators and contractors to work together to understand and resolve issues during all phases of audits
- Encourage comprehensive and holistic evaluations of contractors’ affirmative action and nondiscrimination efforts as opposed to overemphasizing statistical significance
- Reevaluate the true burden placed on federal contractors in responding to the revised Scheduling Letter and Itemized Listing and determine how it could be revised to better reflect a nonintrusive, cooperative compliance review process
(Report, p. 7.)
Thank you, U.S. Chamber, for taking the time and effort to prepare such a thoughtful report with pragmatic and practical suggestions for this important government agency. We can only hope that OFCCP officials review it with an open mind.