The Office of Federal Contract Compliance Programs ("OFCCP") has stepped up its efforts to ensure that covered federal government contractors and subcontractors (collectively, "government contractors") are in compliance with the nondiscrimination and affirmative action requirements of Executive Order 11246, Section 503 of the Rehabilitation Act of 1973 ("Rehabilitation Act"), and the Vietnam Era Veterans' Readjustment Assistance Act of 1974 ("VEVRAA"), and their implementing regulations. The agency's plans for increased compliance reviews and enforcement actions, and focus on systemic discrimination in hiring and compensation, signal the aggressive stance it is taking regarding compliance. These plans come at a time when the OFCCP has recovered record settlements from government contractors for claims of unlawful discrimination. Therefore, government contractors need an experienced law firm to provide advice and counsel regarding their nondiscrimination and affirmative action obligations.

Epstein Becker Green's longstanding and substantial Affirmative Action/OFCCP Compliance practice regularly advises and counsels government contractors on their nondiscrimination and affirmative action obligations and assists them in:

  • the preparation of their affirmative action program ("AAP") plan documents;
  • the development and implementation of their AAPs; and
  • the defense of a compliance review, when subject to an audit.

AAP Plan Document Preparation

Government contractors are required pursuant to Executive Order 11246 to develop and maintain a written AAP for each of their establishments if they have 50 or more employees, and they (i) have a government contract or subcontract of $50,000 or more; (ii) have government bills of lading that, in any 12-month period, total or can reasonably be expected to total $50,000 or more; (iii) serve as a depository of government funds in any amount; or (iv) are a financial institution that is an issuing and payment agent for U.S. savings bonds and savings notes in any amount.

Written AAPs are also required pursuant to the Rehabilitation Act and VEVRAA.

Epstein Becker Green's attorneys:

  • work with government contractors in preparing, and annually updating, all AAP plan documents;
  • perform a number of quantitative analyses designed to evaluate the composition of the workforce and the composition of the relevant labor pools;
  • prepare statistical reports;
  • conduct impact ratio and compensation analyses to identify and resolve potential adverse impact and compensation disparities; and
  • when preparing the AAP plan documents, work hard to ensure that clients fully understand the process, purpose, and results of their AAPs.

AAP Development and Implementation

An AAP is a management tool designed to ensure equal employment opportunity. A central premise underlying affirmative action is that over time, absent discrimination, a government contractor's workforce will generally reflect the gender, racial, and ethnic profile of the labor pools from which the contractor recruits and selects its employees.

Epstein Becker Green's attorneys:

  • work with government contractors in the development and implementation of their AAPs;
  • provide advice and training of management personnel regarding the examination of the government contractors' employment processes, and the establishment of protocols/action-oriented steps, internal audit, and reporting systems (this includes assistance with applicant tracking, outreach and recruiting of individuals with disabilities and covered veterans, data collection, employee selection and training, and record retention); and
  • provide assistance to ensure the government contractors meet their EEO-1 and VETS-100/100A reporting obligations.

OFCCP Compliance Review Guidance and Defense

Every year, the OFCCP randomly selects government contractors for compliance reviews. Desk audits are initially performed, with on-site investigations to follow, if systemic discrimination in hiring and compensation practices is suspected.

Epstein Becker Green's attorneys:

  • guide government contractors through the compliance review process;
  • address issues pertaining to jurisdiction;
  • provide a rigorous defense to those contractors subject to such reviews; and
  • if compliance issues are identified during the review process, rely on their extensive experience negotiating conciliation agreements to bring about a fair and equitable resolution, or mount an aggressive defense in enforcement proceedings.

A key to the firm's success has been the strong contacts and relationships attorneys establish and maintained with key OFCCP personnel, both past and present.