Construction Today 2018 - Volume 16, Issue 3 - 175
IN THIS SECTION
30 days of receipt of the scheduling letter. After a contractor submits
its affirmative action plans and supporting documentation, the
OFFCP may request additional documents and/or information, and it
may identify problem areas some or all of which may be resolved at
the desk audit stage.
If the problem areas remain unresolved, the OFCCP will conduct
an onsite audit to investigate those unresolved issues. Additionally,
post-onsite follow up - such as additional document or data requests
- may occur. At any stage, a compliance evaluation, the OFCCP can
close the audit. Of course, the best case is receipt of a closure letter,
which means that the OFCCP did not find any technical violations
or other deficiencies. Conversely, the office may cite the contractor
with technical violations such as the failure to post required notices.
Such violations do not involve any monetary penalty; however, the
contractor will need to take affirmative steps to correct the violations.
If, however, the OFCCP alleges that the contractor engaged in, for
example, hiring or pay discrimination, the OFCCP will seek to obtain
monetary relief for the class of individuals affected by the contractor's
Traditionally, the OFCCP has focused its efforts on supply and service contractors for compliance reviews. Since 2014, however, it has
increasingly targeted construction contractors. Historically, the OFCCP
has found that women and minorities (particularly African Americans)
continue to be underrepresented in construction occupations. So, the
risk of a constructor contractor being selected for an audit is on the rise.
Construction contractors normally will not receive a scheduling
letter; rather, they may first receive a telephone call from a compliance officer and then a follow up letter scheduling an onsite audit.
Unlike supply and service contractors, construction contractors do
not get the benefit of a desk audit prior to an onsite audit. During the
onsite audit, which may last two to three days (or more) depending
on the size of the company and the number of jobs that are open,
the OFCCP will interview management and visit open job sites to
interview employees. The OFCCP also will collect affirmative action
plans, review the contractors' good faith efforts to achieve goals for
minority and female participation and focus on compliance with the
applicable 16 affirmative action steps outlined in the regulations.
Generally, those steps relate to recruitment practices, equal opportunity implementation and dissemination, equal opportunity and
anti-harassment training for supervisors and managers, personnel
operations and solicitation to small disadvantage business enterprises and minority and female owned business.
Construction contractors must also make certain that their
subcontractors and vendors are aware of their affirmative obligations under the OFCCP regulations as well as compliance with
Spence Brothers has
survived for decades by
being willing to change.
of South Carolina
Technology is critical to
two healthcare projects.
176 Spence Brothers
180 Gilbane Building Company
182 Medical University of South Carolina
Davis-Bacon Act wage determinations. The
contractor must maintain documentation
to demonstrate that it has in good faith
complied with those 16 steps. Failing to do
so will result in technical violations of the
regulations. The OFCCP will also analyze
pay data for compliance with Davis-Bacon
as well as for potential pay discrimination.
Those federal contractors who received
a scheduling letter should use their time
wisely to get ready. Construction contractors
should ensure that they are audit ready at
all times as they may not receive substantial advance notice of an onsite audit. All
contractors should periodically conduct
self-audits to help minimize potential liability and to put themselves in a position to
successfully handle an OFCCP audit.
Donna M. Glover is an associate in Baker Donelson's Baltimore office. She
represents a wide variety of clients, including construction, property management,
and scientific and technology solution companies, and not-for-profit organizations, some of which are federal contractors. She can be reached at dglover@
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