The following post is from a recent conversation I had with Candee Chambers, during which we discussed recent trends in OFCCP audits and the importance of building a good rapport with your OFCCP compliance officer.
JOHN: Candee, I wanted to let you know that I am hearing from many federal contractors from coast to coast that they continue to be upset about the OFCCP “bullying” them in audits. I just heard from a senior Employment Labor Lawyer at a major nationwide company who was calling to get my suggestion about how she should proceed to defend the company’s OFCCP audits going forward now that the last of her HR Managers has asked to be relieved of OFCCP audit responsibilities. She reported that her people are tired of the “abuse” and that the “straw that broke the camel’s back” happened this morning when an OFCCP compliance officer “went off on” the HR Manager by “screaming” at her over the phone and accusing the HR manager, among other things, of altering company documents to hide presumably damaging information. The HR Manager called the senior Labor counsel crying and asking that Legal now take over this audit and all future audits since she was now “done with OFCCP.” I received a very similar call from another senior Labor lawyer at another major company two weeks ago to the same effect and asking my law firm to take over the defense of all of its audits going forward. Do you think it would be worthwhile for you and me to write a Blog to discuss how to handle perceived OFCCP bullying?
CANDEE: Wow. That’s really interesting to me. You know, with all the audits I have been through, I have never felt like I was being bullied. Honestly, the main reason for that is probably two-fold. First, I have always made it a priority to build a relationship with my compliance officers. Even when they were giving me a difficult time, I tried to remember that they had a job to do just like I did, and while I might not like how they were doing their job, they still had a responsibility to get it done. Secondly, I also made it a priority to ensure that I reviewed everything thoroughly that was sent to the OFCCP so I was very clear on what they had. I also made sure that everything was sent in a very organized manner and I had every question answered before they had a chance to ask. I used to say that I looked at everything with an ‘OFCCP lens.’
It seems that many federal contractors today count on their AAP preparers too much and are not necessarily able to answer OFCCP questions effectively on their own. As you and I have discussed in the past, many contractors are not getting adequate advice from either their outside legal counsel or from their AAP preparers.
Bottom line, I firmly believe that if a federal contractor builds a good relationship with their compliance officer, and presents everything to the OFCCP in a professional manner, they can set themselves up for a much easier audit experience. They also need to learn the regulations so they can confidently answer any question that comes their way.
JOHN: I could not agree more about the desirability of contractor representatives in OFCCP audits to build a relationship with the OFCCP compliance officers. The bullying does not appear and OFCCP takes at face value so much more of the information the contractor representative is imparting to the compliance officer. By building a relationship, I mean being social, cooperative, and transparent but I do not mean “either kowtowing to OFCCP or sacrificing core values of the company. (I just love that word kowtow…one of the few Chinese words we have incorporated into modern American language having been so early on dependent on the Romans and the Greeks). I also think it is an art to stand down a burdensome and irrelevant OFCCP request for documents in a graceful manner which neither wounds the dignity of the compliance officer nor makes them appear unknowledgeable about OFCCP’s regulations or procedures. So, how do you push back to OFCCP in a graceful manner without wounding and getting the compliance officer’s dander up?
CANDEE: Obviously, one cannot forget that the compliance officer has a job to do. The point where I have had an issue was in how they chose to do that job. With audits all across the country, there were numerous situations where some compliance officers had not received appropriate training, and that would usually be very evident during an audit. I have had compliance officers ask me for things that I knew were not correct so I would just ask them to send me the regulation that showed me I had to provide what they were requesting. For example, during the worst audit of my career, I received a request to provide both job postings and the actual names of all the veterans who had been referred to me from the state workforce agencies. I knew the regulations required job listings, not job postings, and I also knew that I did NOT have to provide the names of any veteran referrals we had received. I played dumb and asked the compliance officer to send me the regulations because (and this is what I said to her as my reason for the request), if I had to tell my boss that I provided something to the OFCCP that they shouldn’t have requested in the first place, I would be in big trouble. Well, of course, when I was on the phone with her, I had the various regulations open on my computer and the funny thing was that she never sent the regulations to me, because she was obviously wrong. That’s why I keep trying to educate our members over and over about the importance of learning the regulations.
In other situations when they ask for something that is going to take much longer for me to get than they seem willing to give, I explain my situation–i.e., the individual from whom I need to request the information is on vacation, I am going on vacation, the information comes from several different systems, etc.– then I ask them if they want the information on a piece-meal basis or if they want to wait so I can provide everything at once. Even more importantly, is that I try to talk them down off their original request. I know of a situation where one company was asked to provide compensation data (all the way back to each employee’s date of hire), when you and I both know they didn’t need to see all that information. Instead of providing all of that data, I would first have them define what they were looking for and tell them how easy it would be to provide that data. If they needed more after that review, I would happily provide additional information. I have run into similar situations like that myself, and the funny thing about that is that I have never had them request additional information!
JOHN: Yes, I too like the “dumb like a Fox approach” to OFCCP audits. I also think it is sometimes important to respond with difficult news by e-mail and to start with what sounds like an apology, but really it isn’t. Empathy often goes a long way to defuse otherwise bitterness. Begin your email by stating, “Unfortunately, we do not array our data in that fashion or have any documents listing the information you have requested.” It is important to remember that the OFCCP has no legal authority to require contractors to create records or to do “paralegal work” for the OFCCP to analyze corporate data. If the OFCCP’s regulations do not require the analysis or the data display, then the OFCCP is just left to request documents from the contractor in the form, and format, in which they exist (if they do) within the company. If the contractor wishes to exercise its discretion to array data or analyze it for the OFCCP, the contractor may, of course, do so, but should not thereafter decry the cost, time or expense of that decision. How are you handling the new form of the OFCCP’s auditing technique, or what I call the “serial stalkers” who send contractors Supplemental Data Request (SDR) after SDR after SDR after SDR during the Desk Audit, rather than to seek to come onsite?
CANDEE: Funny you should ask your last question, because I think I probably hold the record for the greatest number of SDR’s any federal contractor has received–and that is a whopping 38 requests! While every day I would go into my office and see yet another email or receive yet another phone call from the compliance officer, believe it or not, we actually got along! She even shared a story with me one time of another federal contractor who cursed at her over the phone and I told her, honestly, that no one should have to deal with that type of treatment.
The number of SDR’s was absolutely ridiculous, but again, I played ‘dumb’ when I didn’t agree with her request or I told her that her timeline wasn’t realistic. A very important point with every compliance officer is to be up front with him or her. I know of one federal contractor who told me that she only addressed questions from a compliance officer once a month, and never even looked at their emails until that time. BIG MISTAKE!!! As I said to you before, compliance officers have a job to do just like the rest of us, and if you cannot get their request handled on their timeline, let them know! They would much rather have you be honest with them than lie to them. I also recommend that contractors ask the compliance officer to put every request in writing. Sometimes they do and sometimes they forget…and when they forget, that’s better for the contractor! First and foremost, though, I always made it clear that it was a requirement at my company that I get all requests in writing. I would tell the compliance officer that I would get in trouble if I didn’t require this as I wouldn’t be following company policy! Just think how many requests I would have received if I hadn’t explained my company policy requiring everything to be in writing! All kidding aside, the OFCCP tries to find something in almost every audit, some regions more than others. By having my data in order, it made it very difficult for the compliance officer to find anything, and she kept going back to areas I thought she was done reviewing. The main thing she kept asking for were copies of job “postings,” instead of job “listings,” which she should have been asking for since the regulatory requirement is to just prove the listing of the jobs to the Employment Service Delivery Systems. And she also kept insisting that I give her the names of the state workforce agency veteran referrals (which again, is not required). Now I think you understand why this was the worst audit of my career!
I finally thought I would receive my first conciliation agreement because I just could not get past her continuous requests so I forwarded her last email to DirectEmployers that just said ‘Help’ in the subject line. I was on my way to do three hours of Affirmative Action training at my company and by the time I returned from my training, I found several voice mails and several emails indicating that my audit was going to close with a full compliance finding and that my compliance officer and the Assistant Director of NASWA –who I had discussed this audit with previously–had spoken and had gotten everything worked out for me! All of this from a simple ‘Help’ request that I sent to DirectEmployers! How cool is that?
If you’re attending the ILG National Conference in Washington, D.C. August 5-8, you can catch Candee in two sessions. First, during the pre-conference activities on Tuesday, August 5, she’ll be joined by Beth Ronnenburg of Berkshire Associates to conduct a workshop titled VEVRAA & Section 503: Data Collection and Analysis. Then, Wednesday, August 6, Candee will join the following panelists in the session Partnering with State Workforce Agencies: Pam Gerassimides, NASWA; Gideon Blustein, Illinois Department of Employment Security; and Chris Rzeppa, Penske. John C. Fox will also be in attendance and presenting Recent Significant OFCCP Developments on Thursday, August 7, with Melissa Speer and Janette Wipper of the OFCCP.
Finally, swing by booth 26/27 to snag one of our augmented reality t-shirts and learn how DirectEmployers assists companies with OFCCP compliance.