COMPENSATION UPDATE: OFCCP started the new year aggressively in audits by making increasingly more detailed and more numerous compensation data requests of contractors. The latest we have seen is a 29-point questionnaire up from the originally published 14 point questionnaire years ago and the 18 point questionnaire very popular last year and the 22 point questionnaire occasionally sighted in the waning days of 2014. Is bigger and longer better?
CONCILIATION REQUIRED?: The EEOC faced tough questioning in the U.S. Supreme Court on Tuesday of this week in Mach Mining v. EEOC, one of the most important Title VII cases the Court has heard in many years and with great potential applicability to OFCCP audits and litigation. ISSUES: Whether the EEOC may ignore Title VII’s requirement it conciliate in good faith a claimed violation of Title VII before suing a company for an alleged violation, and if not, what amount of “conciliation” is required and what happens if the EEOC fails to properly conciliate? EO 11246 has a parallel requirement:
“(b) Pursuant to rules and regulations prescribed by the Secretary of Labor, the Secretary shall make reasonable efforts, within a reasonable time limitation, to secure compliance with the contract provisions of this Order by methods of conference, conciliation, mediation, and persuasion before proceedings shall be instituted under subsection (a)(2) of this Section, or before a contract shall be cancelled or terminated in whole or in part under subsection (a)(5) of this Section.” See Section 209 (b) of EO 11246, as amended.
VALUING FEDERAL CONTRACTS OVER MULTIPLE YEARS: OFCCP formally took the position this week in an audit of note that the value of a government contract includes all payments across multiple years, even if the contract (like most government contracts) were for only one year with the authority to extend the contract in one year increments up to four times. This becomes important as to companies with small value government contracts which would otherwise avoid OFCCP compliance altogether, or avoid some compliance obligations if OFCCP did not aggregate the value of the goods or services in each year over the eventual 5 years of the contract, as extended. Example:
o Year 1: $105,000
o Year 2: $ 8,000
o Year 3: $ 11,000
Without aggregation of the 3 years in the above example to produce “a” single contract valued at $124,000, the following result would obtain:
-Year 1: contractor covered for all purposes under all three of the statutes OFCCP enforces
-Year 2: no OFCCP coverage under any of OFCCP’s 3 statutes (because exempt)
-Year 3: covered under EO 11246 and Section 503, only (but not required to have AAPs) and exempt from any obligation under 4212 (VEVRAA)
THIS COLUMN IS MEANT TO ASSIST IN A GENERAL UNDERSTANDING OF THE CURRENT LAW AND PRACTICE RELATING TO OFCCP. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. COMPANIES OR INDIVIDUALS WITH PARTICULAR QUESTIONS SHOULD SEEK ADVICE OF COUNSEL.
Reminder: If you have specific OFCCP compliance questions and/or concerns or wish to offer suggestions about future topics for the OFCCP Fox Report, please contact your membership representative at 866-268-6206 (for DE members), or send an email to Candee Chambers at candee@directemployers.org with your ideas.
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