2C On-Site Review Preparation

COs must be concerned with gaining information that makes the on-site review useful to answering the question of whether the contractor complied with its obligations. If employees are afraid of cooperating for fear of retaliation, the on-site review could be compromised. COs should, therefore, take specific actions to notify and protect employees.

COs, when on-site, must inform the contractor’s managers, employees and applicants that individuals exercising their rights under OFCCP’s laws have protections from retaliation. Specifically, the regulations implementing Executive Order 11246, Section 503 and VEVRAA prohibit interference and intimidation of any individual exercising his or her rights under OFCCP’s laws. The CO must give this notice to the contractor at the entrance and exit conferences, and include it as a part of any interview conducted during the on-site review.

The prohibition against interference and intimidation includes threats, coercion, harassment and discrimination. Retaliation may take the form of adverse employment actions such as termination, demotion, failure to hire and harassment. As with interference and intimidation, contractors may not retaliate against an individual for exercising his or her rights under the laws enforced by OFCCP. Specific activities protected from contractor interference, intimidation and retaliation include:

• Filing a complaint;
• Assisting or participating in an investigation, compliance evaluation, hearing, or any other activity related to the administration of the Executive Order 11246, Section 503 and VEVRAA or other EEO laws;
• Opposing any act or practice that violates any of these EEO laws; and
• Exercising any other right afforded them by these laws.

a. The Standard Compliance Evaluation Report. The SCER documents the scope, progress and results of an on-site review.86 It also includes notes confirming that a contractor met its obligations or describing any problem areas the CO identified during the desk audit, on-site review, and off-site analysis. A CO may not be able to complete the desk audit portion of the SCER because the quality of the desk audit data is inadequate or was insufficient. In that situation, the CO’s initial task during the on-site review is to complete the desk audit portion of the SCER. You will find a copy of the SCER and instructions for completing it in Appendices A-1 SCER and A-2 SCER Instructions.

With a full understanding of the contractor’s employment practices and affirmative action efforts, a CO may identify new problems or find that the contractor resolved previously identified problems. COs must describe problems identified during the on-site review and record any recommendations for corrective actions to resolve problems.

b. Obtaining and Maintaining Records. All communications and information COs gather during the compliance evaluation must remain in the case file. Examples of information or data a CO might gather are data and record submissions by the contractor; information gathered from other sources such as applicants and employees; and interviews with contractor officials, employees and others. This includes all information obtained during the on-site review. In addition, COs must document their activities and communications in connection with the on-site review in the compliance evaluation or Case Chronology Log.87

These are several of the general principles for properly maintaining records:

• Every document collected during the review, even if it does not support the ultimate finding, is included in the case file. These documents include those in both paper and electronic formats.
• All email and other written communications must be dated, identify the individuals participating in the communication, and accurately reflect any agreed commitments. For example, the emails in a CO and contractor email exchange discussing possible dates for the on-site review would reflect the CO’s name and position, the name and position of the contractor’s representative, the dates proposed and the dates for the on-site review that were agreed upon.
• Original documents submitted by contractors or otherwise obtained by COs must not be altered. Alterations, including notes made by a CO, should be made on working copies.
• Interview statements, whether obtained by a CO in person or by telephone, must remain in the case file. These statements must include the name and position of the person conducting the interview, the name of the person interviewed and his or her title or position, the date and time of the interview, and the location of the interview. COs must also note if other people were present during the interview such as the legal counsel or a personal representative. Interviewees should review and sign the CO’s interview notes and typed statement indicating that they are accurate. Section 2M of this chapter provides specific information on interviews.
• Information obtained during interviews and a CO’s observations must be reduced to writing as soon as feasible. The CO must type handwritten notes, using MS Word, before placing them in the case file.
• Supporting evidence must be in a clearly labeled section of the case file. Supporting evidence may include the CO’s notes, worksheets, contractor data and any other material related to specific problem areas identified by the CO.

At desk audit, COs check the electronic CMS and the EIS to obtain a list of prior compliance evaluations of the establishment and identify any issues found in the previous OFCCP reviews. This information must be updated and reviewed when determining what to include in an On-Site Plan. As an example, if OFCCP obtained a CA in a prior review, the CO must use the on-site visit to confirm that the contractor took and maintained the required corrective actions. If the purpose of the on-site review is to address questions that arose as part of the monitoring of a CA, the CO must develop an Investigative Plan that addresses those specific questions.

If COs do not have current information regarding discrimination complaints filed against the contractor with other agencies, they must contact the EEOC and the appropriate state or local FEP agencies to ascertain the existence, nature, scope and status of any complaints. COs must include the replies or information obtained from these agencies in the case file and incorporate them, as appropriate, into the On-Site Plan.88 In addition, COs should check the DOL’s Enforcement Database89 or reach out to other DOL agencies, such as the WHD or OSHA, for information on the compliance history of the establishment.

An On-Site Plan is an important step and COs must develop one before each on-site review. Although the scope of the on-site review may change as a result of the on-site observations and evidence, the On-Site Plan serves as the initial outline or “road map” for conducting the on-site review. In some cases, it may be helpful to involve staff from the regional solicitor and DPO in devising the On-Site Plan. For contractors with complex compensation systems (such as education, information technology, finance, or healthcare sectors), attorneys and DPO statistical experts may help ensure that appropriate information, documents and data are obtained.90

The On-Site Plan must include each problem area identified during a desk audit and described on the SCER in Part B. For each problem area, the On-Site Plan must identify or describe the data and records the CO will obtain and review, interviews that the CO will conduct, and any other known relevant materials the CO will review while on-site. For example, additional information may include materials related to the desk audit findings such as personnel records, payroll records, applications and resumes, and materials not included in the original submission such as employment advertisements and position descriptions. In addition to individuals who are interviewed as a routine matter (for example, the human resources manager), interviewees should include individuals relevant to the investigation of any indicators of discrimination identified at the desk audit stage (for example, selection officials, employees and applicants).

The On-Site Plan must also include a list of technical items, such as the posting of the Equal Employment Opportunity Is the Law poster (“EEO is the Law” poster) and the required supplement, that the CO will verify while on-site. Additionally, the plan must identify field office staff who will participate in the on-site review, and their roles and responsibilities. The On-Site Plan must also include the projected dates for the on-site review, as discussed with the contractor.

If a CO is going on-site as part of a focused review, the On-Site Plan will reflect the more limited scope of this type of review. Similarly, if a CO is going on-site to conduct a compliance check, the On-Site Plan will be narrower because the plan will not encompass all of the elements of an On-Site Plan that the CO would develop for a comprehensive compliance review. When going on-site for a compliance check, COs must use the Compliance Check Control Sheet to record whether the contractor maintained the appropriate records or whether the contractor needs to provide additional information and documentation.91

In preparation for the on-site review, the CO must contact the contractor, or the contractor’s representative, to schedule the on-site review. The CO must make any additional data requests beyond what the contractor provided at the desk audit during this pre-on-site stage, to refine indicators and prepare for a potential on-site visit. Supplemental information requests must include the basis for the request, be reasonably tailored to the areas of concern, and allow for a reasonable time to respond.

Receipt of supplemental data may result in resolving the indicator(s) of potential violation(s) and, as such, no further investigation may be warranted. If problem areas remain, the CO will identify the contractor officials who will need to be available during the on-site review. The CO must also inform the contractor that he or she may need additional information and interviews related to identified problem areas as the on-site review progresses. Having such a discussion before the on-site visit provides the contractor with time to locate and make available requested information and interviewees.

The CO must provide the contractor with written confirmation of the on-site date(s) and time(s) at least three business days before the on-site visit.92 This confirmation must also include a summary of the preliminary indicators of potential violations, requests for access to interviewees, as well as data and information that the CO is aware of needing at that time. The confirmation is sent to the contractor by certified mail, return receipt requested; however, a courtesy copy may be sent by email or facsimile.93