An on-site audit by the Labor Department’s Office of Federal Contract Compliance Programs (“OFCCP”) can be an intimidating process for a company’s hiring managers and supervisors who undergo interviews with OFCCP compliance officers, but nerves can be quelled with preparation tactics. Below are a few tips on how to prepare your hiring managers and supervisors:
Begin briefing hiring managers/supervisors at least a week before the scheduled interviews in order to give managers/supervisors time to review relevant material (i.e., personnel records/job postings and descriptions/resumes, etc.).
Managers/supervisors should thoroughly understand the nature of the review and the OFCCP compliance standards that the company is obligated to meet.
Managers/supervisors should be able to explain employment decisions and potential discrimination/disparate impact concerns.
Ensure that the managers/supervisors can explain the “necessity for a job’s minimum qualifications.” In other words, if a company is requiring all entry-level administrative assistants to hold a four-year college degree, the manager/supervisor should be prepared to explain what aspect of the job requires a four-year degree as opposed to, for example, a two-year associate’s degree or a high school degree.
The goal is for the managers/supervisors to convey the legitimate non-discriminatory reasons for the company’s actions.
Convey the company’s position with respect to signing statements.
At the end of interviews, witnesses are often being asked to sign a statement, prepared by an OFCCP compliance officer, recapping the witness’s statements.
Managers/supervisors should know that they may face pressure to sign such statements.
Companies have the right to have a representative attend interviews of management witnesses and to defend such witnesses if they refuse to sign the OFCCP’s interview notes. Managers/supervisors should be told if the company intends to send a representative to attend the interview and to possibly defend them.
If a witness does not want to sign an interview statement, the representative (usually an attorney or designated human resources representative) should point out as many differences as possible between the representative’s notes and the OFCCP’s interview statement.
Tell managers/supervisors not to sign any written statement without reviewing it for total accuracy with in-house counsel or the designated human resources representative.
If the company’s position is to never sign anything, it should convey this position to the witness in advance of the interview. Employers should explain to witnesses that nothing in the regulations requires the company or its witnesses to sign off on the OFCCP’s interview statement so that the witness does not feel as though he or she is violating the law by refusing to sign.
If the company’s policy is to sign accurate interview statements, as opposed to refusing to sign any statements, advise managers/supervisors to take the OFCCP interview statement to another room and review it for accuracy. This may mean checking the statement against company records. The witness and the company representative should take as much time as needed to review the statement so that it is correct and complete as to matters of significance.
Train managers/supervisors on how to deal with inaccuracies in the statement. Depending on company policy, the managers/supervisors should either be told to make corrections to the statement and return the document to the OFCCP compliance officer unsigned, or to make corrections and then sign the statement.
Under no circumstances should a witness sign something that is not correct or complete because the statement can be subpoenaed.
The attorneys at Harmon & Davies, P.C. are here to assist you through the OFCCP audit process.
This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.
Tags: Employer, OFCCP, On-Site Audit
