GAO Report on OFCCP Cites Concerns Regarding Inconsistent Investigations, Lack of Staff Training and Contractor Selection Process

The Government Accounting Office recently released a report on the DOL’s Office of Federal Contract Compliance Programs (OFCCP). The report notes several concerns related to the Agency’s contractor selection process, investigator training and compliance assistance efforts. Further, the report details many of the concerns voiced by contractors regarding inconsistency in investigations and contractors’ overall distrust of the Agency in compliance assistance efforts. OFCCP received a draft of the report and, in its response to the draft report, agreed with some of the recommendations related to changes in the selection process and better monitoring of contactors for AAP compliance.   Further, the Agency noted its efforts to improve training and compliance assistance.

What was the scope of the investigation?

The GAO’s evaluation was comprehensive. Sources of information included the GAO’s:

  • review of 6 years of evaluation and enforcement data;
  • review of 43 compliance evaluation files;
  • interview of 24 contractors, 14 employer organizations and 13 employee advocacy groups and;
  • interviews of OFCCP managers and compliance staff.

What did the report find?

The findings focused on operational and procedural matters.  The GAO’s observations included:

  • Deficiencies in OFCCP’s selection and targeting procedures as only 1 percent of evaluations result in substantive violations.
  • OFCCP’s difficulties in efficiently tracking whether contractors comply with AAP plan requirements.
  • OFCCP’s regional offices inconsistently interpreting policies and regulations.
  • Training challenges including reports of staff not receiving formal training before being sent into the field with some compliance officers stating that they did not feel prepared because of lack of training.
  • Long delays in compliance reviews with no violation audits taking an average of 247 days to close and discrimination finding audits taking 1,487 days to close.
  • An 80 percent decline in compliance assistance activities since 2012 with contractors expressing reluctance to seek out assistance from the agency.
  • Deficiencies in providing contractor assistance including a two year absence of contractor guidance on the agency’s website

What did the report recommend?

The GAO report recommended several actions to address the noted concerns. Notable recommendations included:

  • Changing the scheduling list development process so that compliance efforts focus on those contractors with the greatest risk of not complying in their obligations.
  • Developing monitoring systems to evaluate and determine whether contractors are regularly preparing AAPs.
  • Training compliance officers to maintain “a level of competence to help ensure quality and consistency of evaluations across regions and district offices.”
  • Improving compliance assistance efforts to better educate and assist contractors and workers.

What does the GAO report tell contractors?

Based on the GAO report, several contractor takeaways exist:

  • Contractors facing OFCCP reviews should recognize that the Agency’s focus has fully shifted to aggressive regulatory activity and strong enforcement actions.
  • The Agency’s pivot to strong enforcement has resulted in challenges to other areas such as staff training and compliance assistance.
  • Contractors with establishments in different OFCCP regions should be cognizant that inconsistent application of policies and procedures may exist across regions.
  • Compliance reviews continue to be drawn out taking an average of nearly three years and a half years to close where there are findings
  • Contractors should be proactive in monitoring reviews for untrained compliance officers.

Contractors should engage experienced counsel with broad OFCCP experience to assist in proactive management of reviews.