Labor & Employment
Affirmative Action / OFCCP
Our affirmative action practice involves reviewing government affirmative action programs (“AAPs”) prepared by clients or their consultants as well as efficiently preparing such plans for clients ourselves, with our clients’ help. Our use of the latest affirmative action software and firm paraprofessionals allows us to prepare AAPs at a very competitive price, which creates efficiencies when we assist clients in readying their plans for audits by the Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) or a similar state agency. All of our AAPs are reviewed by experienced attorneys before completion.
Quarles & Brady partner Ely Leichtling founded in 1993, and chaired until 2004, the Industry Liaison Group between the district office of OFCCP and local government contractors. He is a leading attorney advising employers in the area of affirmative action. In autumn 2004, the leading national journal for employment counsel and senior human resources leaders (Employee Relations Law Journal) published an article on OFCCP guidance related to Internet Applicants that was written by Ely and Pam Ploor, another lawyer in Quarles & Brady’s affirmative action practice.
We regularly advise clients and represent them during audits of AAPs all across the nation. Two areas of OFCCP’s focus are alleged discrimination in hiring and compensation during audits. The OFCCP may very well issue a Notice of Violation (“NOV”) ordering a contractor to hire numerous applicants, with back pay, or, if it finds pay issues involving current employees, order significant wage payments to the allegedly affected individuals. We have been very successful in achieving favorable outcomes for clients that faced audits, even very challenging audits such as where the client was not complying with any of its obligations before receiving notice of the compliance evaluation.
A sample of our experience is as follows:
- One client unwittingly became a federal contractor and was audited by OFCCP. The client had not complied with OFCCP’s recordkeeping and job posting obligations or engaged in any outreach to women, minorities, covered veterans or individuals with disabilities. OFCCP gathered the needed information from the client and then issued a NOV and draft conciliation agreement. The proposed conciliation agreement outlined ten pages of obligations and required reporting to OFCCP for two years. The client then sought advice from us regarding the audit. We objected to OFCCP’s proposed conciliation agreement and talked to the agency about our objections to the agreement and OFCCP’s approach. Based on our advice, the client declined to sign any conciliation agreement with OFCCP. Less than two weeks later in 2011, OFCCP administratively closed the audit without a conciliation agreement or reporting obligations to OFCCP.
- A healthcare client had combined a number of hospital and clinic facilities owned by multiple, but related, legal entities into one affirmative action program. The client submitted the entire AAP to OFCCP when OFCCP issued a scheduling letter to only one of the client’s clinics. The OFCCP announced that it found a significant shortfall in minority and female hires in various job groups and was on the road to requiring the hiring of numerous rejected applicants along with payment of multiple years of back pay for each applicant. The client called us. We convinced OFCCP to halt its investigation and obtained administrative closure of the review. The alleged problem areas related to facilities and/or legal entities other than the one that OFCCP scheduled for audit. We convinced OFCCP that it did not have jurisdiction over these other facilities and entities. We provided OFCCP with a revised AAP covering just the facility that originally had been scheduled for the audit and showed that no discrimination had occurred at that facility. We saved our client significant time, effort and money so it did not have to try to defend its allegedly discriminatory hiring practices at other facilities and by other legal entities.
- One of our manufacturing clients received a NOV from OFCCP alleging that over 50 minority applicants had been discriminatorily rejected, and seeking back pay for all of them. Through a proper statistical and comparator analysis, along with detailed explanations of the realities of the company’s hiring practices, we were able to convince OFCCP to completely drop the allegations of discrimination and close out the audit, saving our client hundreds of thousands of dollars.
- Another manufacturing client was faced with findings by OFCCP of alleged discrimination in compensation for female mid-level managers, professionals. We analyzed its compensation practices and convinced OFCCP to withdraw the allegations and close out the audit based on our statistical analysis, and analysis of individual male and female comparators, looking at job history, department, function and market data.
- Another client called us when it learned its sales manager received an audit letter from OFCCP 11 months earlier but never informed anyone else at the company. The OFCCP called and threatened to issue a show cause notice based on the company’s lack of response. We became involved in the audit and told OFCCP that we would provide a plan to the OFCCP in 30 days. We quickly and efficiently prepared the plan for the client and OFCCP administratively closed the audit without any violations a few months later.
We also advise Health & Life Sciences clients that are increasingly being subjected to OFCCP audits through their receipt of TRICARE reimbursement and participation in provider networks related to federal government health plans. We help Health & Life Sciences clients steer clear of unintended OFCCP coverage and strategize on resolving audits without conciliation agreements or with as little reporting obligations to OFCCP as possible. We also help Health & Life Sciences clients address their Civil Rights Compliance Plan (“CRCP”) obligations related to equal employment opportunity and equal service delivery.
For more information on how our Affirmative Action / OFCCP Team can help you resolve your workplace issues, please contact Ely Leichtling at (414) 277-5681 /
, Pam Ploor at (414) 277-5661 /
, Adrianne Mazura at (312) 715-5213 /
or your Quarles & Brady attorney.