Thomas Cox, a Member of the Firm in the Labor and Employment practice in the Washington, DC, office, and Dean Singewald II, an Associate in the Labor and Employment practice in the Stamford, Conn., office, were quoted in an article titled, "OFCCP Ramps Up Enforcement."

"The Office of Federal Contract Compliance Programs (OFCCP) is taking a more aggressive stance to ensure compliance," according to Singewald.

Singewald said the agency is considering eliminating the corporate scheduling announcement letter. He noted that the agency is placing not only a renewed focus on women and minorities but also expanded attention on veterans and individuals with disabilities, as well as an expanded focus on whites, men and individual minority groups.

"There are 'no more sweetheart deals' with the agency these days," Singewald remarked.

"The agency is taking a look at outreach and positive recruitment of covered veterans and individuals with disabilities. And now, when there are audits, there are questions in initial meetings about such outreach efforts," remarked Cox.

"At a minimum, the OFCCP expects federal contractors to be able to identify contact people at organizations that they've reached out to in recruiting. Contacts can be useful as well to help gather names of people who have applied because of outreach efforts," Cox added.

"The onus is now on contractors not only to use veteran and disabled candidate recruitment sources but also to monitor the referrals and hires from those sources," Singewald remarked.

Singewald said contractors can avoid violations for lack of outreach by regularly listing job openings with: minority and women recruitment sources; veteran and disabled recruitment sources; and state employment services.

Cox said contractors can ask applicants at interviews who referred them if that information isn't provided on application forms or provided by a contact at the recruitment source.

When employers are audited by the OFCCP, they should determine at the earliest stage whether the agency is pursuing a disparate impact or disparate treatment discrimination claim, Cox recommended. He said that forcing the agency to define the scope of the case will help the employer defend itself.

Cox noted that employers should have adequate recordkeeping so they can look at each component of the selection process and tell which part of the process was discriminatory.

If an employer can't tell which part of the process was discriminatory, the OFCCP might decide that the whole process was discriminatory, Cox cautioned, recommending that contractors scrutinize everything from their outreach efforts, application process, screening process, interviews, background checks and even onboarding. A better understanding of the process can help the employer reach a better resolution with the OFCCP, Cox noted.

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