OFCCP Focuses On Companies Receiving ILJAMoney

“Specific analyses also must be completed to evaluate a contractor’s progress in meeting government-established utilization goals for individuals with disabilities and hiring benchmarks for protected veterans,” said Berkshire.

Companies may conduct the necessary analyses and reports internally, or they may seek outside assistance.

“If you have limited resources or knowledge, our recommendation is to obtain guidance,” said the labor law specialists. “Since these laws can be complex, expert interpretation is often needed.”

Are You in Compliance?

Under its frequently asked questions section, the DOL explains the good-faith efforts construction contractors are required to take.

To increase participation of minorities and women in skilled trades, contractors must maintain a harassment-free work environment.

These good-faith efforts also include recruiting minorities and women, and developing on-the-job training for these workforce sectors. Contractors should develop and disseminate EEO policies and evaluate minorities and women for promotional opportunities.

Unintended discriminatory effects resulting from personnel practices should be constantly monitored.

“Contractors must document their goodfaith efforts fully, which consist of the actions and steps they take to ensure the requirements are met,” according to DOL.

Another question asks if a contractor is meeting all participation goals for minorities and women, can it assume it’s not engaging in any discrimination. DOL’s answer is “not necessarily.” Participation goals are an important aspect of recruiting and developing a more diverse workforce, according to the agency.

“Contractors that meet these goals still need to assess their practices for possible employment discrimination,” wrote the agency.

In determining whether employment discrimination has taken place, OFCCP examines how each minority group is affected by a contractor’s practices.

“Executive Order 11246 prohibits discrimination on sexual orientation, gender identity, religion and on inquiring about, discussing and disclosing pay,” said the agency.

Regulations prohibit contractors from discriminating on the basis of disability and protected veteran status if they hold a direct federal construction contract.

“Whether a contractor is meeting its participation goals for women and minorities has no bearing on whether it is engaging in discrimination on these other bases.”

If employees or applicants experience discrimination in association with a federal construction contractor, what are potential scenarios for the contractor?

According to DOL, employees or applicants can file a complaint with OFCCP, EEOC or a state or local civil rights agency with jurisdiction. Additionally, if they are enrolled in a registered apprenticeship program, they can file a complaint with the apprenticeship registration agency.

“The registration agency may refer a complaint to OFCCP or to another enforcement agency, as appropriate,” according to DOL.

What if a contractor fails to meet participation goals — is it in violation? “Not necessarily,” is DOL’s FAQ response. “Contractors must engage in outreach and other good-faith efforts to broaden the pool of qualified candidates to include minorities and women.”

Good-faith efforts include monitoring the effectiveness of outreach and recruitment strategies in attracting diverse applicants.

Linking with different or additional referral sources in the event that recruitment efforts fail to produce a diverse pipeline of applicants is another positive move.

“The participation goals are not quotas, and no sanctions are imposed solely for failure to meet them,” said DOL. “A contractor’s compliance is measured by whether it has made good faith efforts to expand employment opportunities and break down barriers to employment for minorities and women.”

Something else to think about: Accommodation request records required by contractors to maintain. Contractors are required to maintain records of requests related to pregnancy, childbirth, related medical conditions and religious practices and observances. In addition, direct federal contractors are required to maintain records of requests related to disabilities, including those from disabled veterans.

“Specifically, contractors should maintain documentation on requests made, relevant meetings and discussions held and final dispositions. OFCCP regulations require contractors to grant reasonable accommodation requests unless they can demonstrate that doing so would impose an ‘undue hardship’ on the operation of its business.”