Despite the fact that a decision regarding OFCCP jurisdiction in the health care arena is pending, prudent contractors in the industry are well advised to assess their abilities to respond to an OFCCP audit.  Health care providers may consider a self audit to determine their ability to pull workforce data and selection data (e.g., applicants, hires, promotions, and terminations).  In the event of a review, the ability to pull and analyze the aforementioned data sets in “real time” is critical.

Competent counsel should be at the center of the self-audit analysis. Self audits conducted at the direction of counsel, and their results, may be protected under the ambit of the attorney-client privilege.  A self audit that analyzes selection processes for statistically significant adverse impact, organizational demographics, and compensation policies will give a “contractor” an opportunity to identify and address potential “issues” prior to OFCCP scrutiny.  As the adage goes, an ounce of prevention is worth a pound of cure.