Q: What happens if we are audited for Affirmative Action?
A: For goods and services contractors, a compliance review or “audit” by the Office of Federal Contract Compliance Programs (OFCCP) is commenced when you receive a scheduling letter requesting submission of your plan within 30 days. This desk audit phase is a comprehensive review of your plan for compliance and good faith efforts. If you have technical violations (such as failure to comply with data/record collection and retention requirements) or indicia of discrimination in personnel practices, the desk audit may lead to an onsite audit where OFCCP officers come to the contractor’s establishment for a comprehensive review of affirmative action compliance and documentation.
For construction contractors, an OFCCP audit also begins with a scheduling letter requesting data and document submission, but also necessarily includes an onsite audit of one or more construction project sites. Again, the onsite audit will be a comprehensive review of affirmative action compliance and documentation.
In the vast majority of cases, technical violations, as well as indicia of discrimination issues, are resolved in a conciliation and education process. That process usually culminates in a conciliation agreement typically obligating the contractor to remedy technical violations, provide a heightened and more frequent level of reporting to the OFCCP, or to pay monetary compensation for those affected by the alleged discriminatory practices identified in the audit process, if any. Although technical violations can be serious and are fairly common, monetary remedies for alleged discrimination are less frequent, but can be significant. If technical violations or alleged discrimination cannot be resolved in conciliation, the OFCCP may turn the matter over to the Solicitor General for enforcement proceedings against the contractor. In rare cases, a contractor can be barred from future government contracts.