Affirmative Action/OFCCP Compliance

Companies can gain tremendous benefits and numerous opportunities from government contracts. But they must also deal with a litany of strict, detailed regulations, especially given the current stepped-up enforcement of anti-discrimination laws and affirmative action regulations. Littler Mendelson has spent years helping employers comply with the vast network of procedures that accompany these sought-after contracts.

In recent years, the OFCCP has intensified its enforcement of laws requiring federal contractors to show that they are not discriminating against employees or job applicants and are engaging in good-faith efforts to ensure equal employment opportunities for women, minorities, individuals with disabilities and veterans. We assist companies of all sizes in complying with detailed recordkeeping requirements, conducting sophisticated data analyses and keeping up with changing regulatory requirements.

Littler understands the intricacies and nuances of these requirements, and we have assisted companies in all sizes in complying with detailed recordkeeping, conducting sophisticated data analyses and gaining a thorough understanding of the accompanying affirmative action regulatory requirements enforced by the OFCCP.

Littler also has experience in employment law areas unique to government contractors including work relating to the Service Contract Act, Davis-Bacon Act, Defense Base Act, Uniformed Services Employment and Reemployment Rights Act, and False Claims Act.

Reliable Data and Analysis

We have a team of lawyers and data analysts with years of experience in this area who knows how to smooth the process by taking precautionary measures, saving our clients from costly missteps that often arise under the deadlines of a government audit.

We operate efficiently and with our clients’ costs in mind, both in the short and long term, because we know what is required, how the law is enforced and what to anticipate. Our lawyers have the experience necessary to prepare annual affirmative action plans and develop desk audit submissions with the same sophistication that the OFCCP brings in evaluating them.

Internal Review

If a client receives notice of a government audit, we thoroughly vet the company’s internal data – unlike some consultants who tend to accept the data at face value – to make sure it is reliable and will meet the government’s strict requirements.

The stakes are high if the data proves faulty. A company that is missing records or provides erroneous data may be presumed to have engaged in discrimination and could be subject to large back pay remedies.

Business Savvy

We work closely with companies to gain an understanding of their overall operations as well as their documents and recordkeeping. With that balanced perspective, we know how to present the data so that it accurately reflects the overall company structure, identifying bona fide problem areas under the protection of attorney client privilege, while trying to avoid presenting false patterns of discrimination. We also work with clients to make sure they understand the various regulatory obligations that go along with having federal contracts or subcontracts.

We assist contractors with all aspects of their obligations as an affirmative action employer, including the following:

• Affirmative Action Plans – We prepare affirmative action plans on a flat fee basis by using appropriate census codes and carefully selected job groups. We thoroughly vet client data for internal reliability and consistency, an accuracy check that others often overlook. All of our plans are reviewed by experienced lawyers, a measure that assures our clients that their communications with us are kept confidential.
• Applicant Tracking and Recordkeeping – We help clients conform with the distinct recordkeeping and applicant tracking obligations under the OFCCP's Internet Applicant definition. At the same time, we understand the realities of recruiting, and we develop creative ways for clients to hire applicants in a manner that works best for them yet complies with the regulations.
• Desk Audit Submissions – We develop submissions that are strategically designed to minimize the extent to which the OFCCP will thereafter issue information requests, which may lead to a lengthy OFCCP audit and costly follow-up.
• OFCCP Information Requests – When a client brings us in after submitting raw data to the OFCCP without any preliminary screening, we help them strategically respond to burdensome information requests. We also conduct detailed analyses of company data to explain any apparent discriminatory inferences.
• OFCCP On-Site Audits – When a company faces an on-site evaluation, we prepare company managers ahead of time by explaining the process and what to expect. During the audit, we work with OFCCP's compliance officers as managers are interviewed and evaluated to ensure that the client's employment practices are explained accurately and in a balanced fashion, even if we did not prepare the initial desk audit submission.
• Employment Tests – We evaluate employment tests and accompanying validation studies to see that they conform with the government’s Uniform Guidelines of Employee Selection Procedures. When necessary, we work with industrial occupational psychologists to assist contractors in developing validation studies that meet OFCCP expectations.
• Compensation Analyses – With OFCCP’s compensation analysis methodologies in flux, and against the backdrop of recent pay legislation, our lawyers are able to evaluate compensation data using in-house attorney statisticians, which improves the likelihood that legal recommendations arising out of any compensation analysis can be protected by attorney-client privilege.

We also advise and provide training for employers on virtually every issue arising from OFCCP monitoring, including government contractor and subcontractor status, the OFCCP's jurisdiction to audit, and single employer issues.

In addition, we assist with separate facility exemptions, compensation issues and self-identification forms covering race, gender, veterans and the disabled. Our services also include preparing EEO-1 reports, as well as VETS-4212 reports.

Employer Training

Littler is known for having one of the most extensive employer training programs offered by any law firm, a curriculum that includes a seminar we have prepared for employers covering steps they can take to prevent unnecessary problems in the event of a government audit.

With our help, employers can go through an evaluation with a minimum of stress and uncertainty, assured that they are receiving invaluable assistance in protecting their company while complying with detailed, comprehensive regulations.