Federal Contractor Watchdog Opens Files on Who’s Being Audited (1)

Sept. 20, 2018, 6:14 PMUpdated: Sept. 20, 2018, 9:12 PM

Hundreds of prominent federal contractors are named on a list of employers selected to be audited for compliance with anti-discrimination laws, under a new policy of publicly identifying targeted companies.

The Office of Federal Contract Compliance Programs has never provided the names of contractors it intends to audit, several management attorneys told Bloomberg Law. The documents, made public Sept. 19, were released as part of an agency initiative toward more transparency.

The lists are frequently requested under the Freedom of Information Act, but the agency has declined to make them publicly available until now, OFCCP spokesman Edwin Nieves told Bloomberg Law Sept. 20. The lists will be posted on the agency website going forward.

The agency selects contractors randomly and examines both affirmative action compliance and whether the company is violating federal anti-bias laws.

Transparency at a Cost?

The decision to release the lists is in line with the agency’s goal of transparency but at a cost, Mickey Silberman, an attorney with Fortney & Scott, told Bloomberg Law.

“At a broad level, this fits into an encouraging trend regarding much greater transparency” from the agency, he said. “With that said, there is a concern here.”

The lists merely indicate a scheduled audit, not an allegation of noncompliance or discrimination, Silberman said.

“This could lead to the misimpression by interested parties that there’s a greater likelihood this employer may be out of compliance,” he said.

Another Batch Identified in January

The list provides only names and addresses of the companies. Letters notifying the employers that they are going to be audited went out Sept. 7. The OFCCP notified a large group of contractors in January that they would be audited, and those names were also released Sept. 19.

The contractors notified on Sept. 7 include IBM, Palantir Technologies Inc., and Oracle Corp.

Oracle declined to comment on the matter. IBM and Palantir didn’t respond to requests for comment.

Palantir reached a settlement with the OFCCP in 2017 over systemic hiring discrimination against Asian job applicants. It disbursed more than $1.6 million in back pay under that agreement.

Oracle has undergone a recent OFCCP audit, which led to litigation that is ongoing. Google, which appeared on the January audit list but not the September list, is locked in ongoing litigation with the agency from a previous audit.

Jackson Lewis is representing Google in that litigation. Matthew Camardella, who practices in that firm’s Melville, N.Y., office, told Bloomberg Law he suspects most contractors on the list would prefer confidentiality.

“It can create some heightened scrutiny for those companies, as plaintiff’s lawyers, unions, or disgruntled employees can mine this data for their respective purposes,” Camardella said.

Federal contractors from many industries, including financial services, manufacturing, higher education, and telecommunications are also slated for audits.

Bloomberg LP, the parent company of Bloomberg Law, was identified as one of the audit targets in the notifications sent in January.

(Updated to reflect additional reporting.)

To contact the reporter on this story: Paige Smith in Washington at psmith@bloomberglaw.com

To contact the editor responsible for this story: Peggy Aulino at maulino@bloomberglaw.com

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