Office of Federal Contract Compliance Programs (OFCCP)

Office of Federal Contract Compliance Programs (OFCCP)The OFCCP says “No!”

Company statements just including Good Faith Effort (GFE) activities are no longer good enough for audit purposes. The Office of Federal Contract Compliance Programs now demands documentation and proof to validate compliance with Executive order 11246 under 41-CFR 60-2.35. (**1)

No Proof; No GFE

Whereas the OFCCP in the past has given credit for GFE’s and always gave employers the benefit of the doubt with regards to the effectiveness of their company’s GFE’s, now and in the future auditors are demanding detailed and regimented proof of each GFE undertaken as well as evidence of the each GFE’s effectiveness.

By no means is the task of planning, implementing, and tracking each GFE easy. Nor is documenting the measurable results and analyzing the success of each effort. But now the consequence of not keeping such diligent records is the potential expense of an audit.

Here are a few statistics from the D.O.L.:

  •  From 2000 to 2005 five percent (5%) of all compliance audits closed with a Technical Conciliation Agreement (TCA). This is a finding of a violation other than discrimination as defined by EO 11246, section 503 Rehab Act and VEVRAA (**2).
  •  In 2012 thirty two percent (32%) of all audits closed with a TCA, of these sixty percent (60%) of these TCA’s included a violation for lack of GFE’s as it relates to Female, Minorities, Veterans and persons with disabilities.
  •  These numbers are expected to increase again as the D.O.L. and OFCCP have made more than 600 new hires specifically to become field personnel (case auditors).

Based on these facts it should be no surprise that the OFCCP is very focused on GFE’s during audits.

Keep in mind what the actual requirements are under CFR 60-2.17 (**1) which states “effective AOP’s (action oriented programs) consist of more than following the same procedures which have previously produced inadequate results” and also showing that “GFE’s  were made to remove identified barriers, expand employment opportunities and produce measurable results”.

Possible Gray Areas

However, since there are no explicit guidelines for GFE documentation this does make the audit and review somewhat subjective depending on the regional or compliance officer bias.

Unfortunately because of this fact coupled with the glaring fact that there is no established set of metrics or this means that what may satisfy one compliance officer will not for another. This can and does lead to the much larger number of TCA’s with GFE violations, generally at the regional level.

GFE’s for minorities, females are only a requirement for job categories that are “under-utilized” although there are no requirements to engage in outreach where these minorities and females are “fully utilized”.

The D.O.L. and the OFCCP recommend through CFR 60 -2 (**1) “that it is not a bad idea” to engage in outreach and recruitment for these groups as well. This is again a possible gray area and potentially a conflict with or violation of the stated company AAP, which will lead to the probable issuance of a TCA. GFE’s for Veterans and Persons with Disabilities are always required regardless of the underutilization of these minorities, this is because there is currently no complete analysis of these groups.

What Can You Do About It?

Here are a couple of ideas and accepted best practices that will go a long way to ensuring not only your company’s efforts but also aid in the acceptance of the GFE’s for audit purposes.

  •  Plan, Plan, Plan. Meet with the recruitment staff to go over all goals, outreach and recruitment wise. Document this meeting.
  •  Development of a corporate book where you can centralize all of the company’s GFE’s. Document and make this available to on a local level too.
  •  Keep track of all off site diversity recruitment vehicles, maintain records and receipts for all job postings, career fairs, and related community outreach programs. Document and keep copies of all your efforts.
  •  Whenever possible keep screenshots with geographic location availability (for proof purposes) when using third party vendors; maintain records of all your contacts.
  •  Use a “kitchen sink” method when putting together your GFE’s. Utilize community outreach and minority recruitment efforts, these will always count toward good corporate citizenship. Always include Veterans and Persons with Disabilities.

Pick a Good Vehicle

There are many potential vehicles that you can use to further your advancement of your company’s GFE’s. But not all of them are equal in effectiveness. Look for those that:

  •  Possess a direct link towards your intended audiences and are seen as prominent centers of information and outreach within those respective communities
  •  Are established bastions of information and outreach in those communities
  •  Their methods and content fall under accepted methods of furthering GFE’s by the D.O.L. and OFCCP

About the Author

Mark Cohen has been working since 1995 to promote diversity and equality in the workplace through minority recruitment and community outreach. In his position as EVP and Director of New Business Development at Equality Mark has become a recognized authority on minority recruitment and compliance.

Equality and its family of Diversity Recruitment Vehicles have been at the forefront of minority recruitment and compliance. Since 1997 they have been advocates of promoting diversity in America’s workforce; bringing the vast and talented pools of African-American, Hispanic, Veteran, and Female workers to the companies that need them.

(**1) Code of Federal Regulations, title 41, chapter 60

(**2) Executive Order 11246, Section 503 of the D.O.L. Rehabilitation Act, Vietnam ERA Veterans Readjustment Assistance Act