The Labor Department is planning to audit contractors that don’t certify their affirmative action compliance to the government, the head of the agency’s contractor enforcement office announced Aug. 3.
The DOL’s Office of Federal Contract Compliance Programs will identify contractors that haven’t verified their compliance to the General Services Administration, OFCCP Acting Director Craig Leen said. He was speaking at the National Industry Liaison Group conference in Anaheim, Calif. Leen didn’t give a time frame for when the audit selections would occur.
Federal contractors must comply with a number of outreach, recruitment, training, and other affirmative action requirements that are separate from their workplace nondiscrimination obligations. Violations of the latter can potentially result in financial liability for contractors.
Contractors must currently disclose to the GSA whether they have an affirmative action plan in place or if they aren’t qualified to do so. They make this certification under penalty of perjury and the False Claims Act.
Although the OFCCP already receives federal contractor information from the GSA, it hasn’t specifically targeted for audit those contractors that haven’t checked the appropriate compliance box. Rather, the agency audits facilities through a neutral, randomized selection process.
In theory, the review of contractors’ self-certification will allow the OFCCP to focus its audits on those contractors who don’t have some kind of affirmative action plan in place, DCI Consulting’s David Cohen told Bloomberg Law.
Cohen said the certification “should take no more than ten minutes.”
Efforts Stems From 2016 Report
The idea of selecting noncompliant contractors for audit comes directly from a 2016 Government Accountability Office report, which reviewed the enforcement agency’s practices and offered recommendations on how the agency could audit contractors more efficiently.
The GAO report also recommended that contractors electronically submit their affirmative action plans annually to the OFCCP, but Cohen doesn’t see that happening in the near future, even with the initiation of efforts to review contractor certifications made to the GSA.
“I do not believe that is going to happen under the Trump administration because of a) the burden and b) data privacy and security reasons,” Cohen said.
Mickey Silberman, co-chair for the Institute for Workplace Equality in Washington, said compliant employers have nothing to worry about with the new certification.
“For employers that don’t certify compliance, they likely will be prioritized for audit,” Silberman told Bloomberg Law. “That should result in fewer audits of the good employers that do certify.”
Silberman said the program “makes good sense” for focusing the enforcement agency’s limited resources. “That would be refreshing from OFCCP,” he said.