The Government Accountability Office (GAO) recently released a report calling on the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) to more vigorously enforce federal contractor nondiscrimination compliance. Specifically, OFCCP is charged with ensuring federal contractor compliance with federal equal employment opportunity and affirmative action requirements that are derived from executive orders and other federal laws and regulations. This objective is pursued by OFCCP through a variety of means including audits, enforcement actions, and educational initiatives. At the behest of a Congressional committee, GAO initiated an investigation into the function of OFCCP and concluded that OFCCP needs to become better in nearly every respect.
As a result of the increased focus by GAO and Congress on OFCCP, federal government contractors should anticipate more vigorous and targeted enforcement of equal employment opportunity and affirmative action requirements. One of GAO’s chief concerns reflected in the report is that, presently, OFCCP does not effectively identify or target contractors who are most likely to be noncompliant with nondiscrimination laws. Instead, contractors are selected for compliance evaluations based a rather irrelevant set of factors (e.g., geography or contract expiration date). The GAO report calls for OFCCP to take more meaningful steps to identify potential noncompliance risk and target higher-risk contractors for the greater share of enforcement compliance reviews. Significantly, OFCCP has already begun this process, though it has not provided any specific details about what attributes will define higher-risk contractors subject to a more vigorous enforcement process.
The GAO report also takes OFCCP to task for enforcement-related inconsistencies that have plagued government contractors who sincerely want to be compliant. For instance, GAO called out OFCCP for giving sometimes vague or contradictory advice to businesses seeking input as to how they can best achieve compliance. To some extent, this is the result of being too decentralized, with different offices offering different interpretations. However, GAO also criticized OFCCP for reducing outreach to government contractors even as critical regulatory requirements were changing, thus leaving contractors in the dark. GAO emphasized that OFCCP’s plan for increased enforcement is not enough – OFCCP must also provide effective outreach and compliance assistance to government contractors who are striving to comply with their legal obligations.
Time will tell whether OFCCP manages to select contractors for compliance evaluations based on the actual risk of noncompliance. Other changes in enforcing compliance are likely to develop over a longer term as OFCCP rebalances and refocuses its compliance officers. One way or the other, OFCCP is unlikely to continue with “business as usual.”