2D On-Site Process
The on-site review typically progresses in several phases, including entrance conference, facility inspection, collecting contractor records, interviews, and exit conference. COs should make every effort to gather all necessary records and conduct all personnel interviews during the on-site review. However, it may be possible to conduct a return on-site visit if the CO identifies some change in the facts or circumstances that supports collecting additional data or conducting personnel interviews. One example of a change is when a contractor submits new information in response to a PDN, NOV, SCN, or during conciliation, and the CO needs to explore the new information further on-site.
Each phase of the on-site process has its unique challenges for COs and an overview of the phases is provided in the following subsections. Collecting contractor records and interviews are also discussed in more detail in sections 2E and 2F. After completing the on-site review and any needed return on-site visit, COs will analyze the information obtained on-site and record findings using the SCER.94
94. FCCM 2O, Investigation Summary or Report Writing.
The on-site review typically begins with an entrance conference with the CEO or highest ranking official in charge of the facility, his or her representative and senior officials who are responsible for implementing the AAP(s). The entrance conference will provide general information to the CEO and explain the purposes of the compliance evaluation. During this conference, a CO will, at a minimum, provide:
- A summary of the contractor’s obligations under the programs administered by OFCCP;
- A description of the scope of the on-site review and the length of time that the CO anticipates being on-site; and
- A description of the information needed while on-site.
A CO must advise the contractor of the need to conduct confidential employee interviews. This includes informing the contractor that it does not have the right to have its representative present during an employee interview as either an observer or the employee’s representative. It is possible that an employee could request the presence of the contractor’s representative during the interview. Should this happen, the CO must determine whether the request is freely made and is not the result of a threat or coercion. The CO makes this determination based on speaking privately with the employee outside of the presence of the contractor’s representative.
A CO may want to interview a management employee in some capacity other than as a manager for the contractor, for example, as a potential complainant or victim. This management employee is not required to have the contractor’s representative present for the interview if he or she is not speaking on behalf of the contractor. The CO must make it clear to the contractor that nothing said by the management employee will be binding on the contractor. The determination of whether the management employee is a potential complainant or victim and whether the contractor’s representative can be present is fact-specific. Therefore, COs should consult with the RSOL and the national office before engaging in these types of interviews.
During the conference, the CO will inform the CEO of the need to meet again to discuss tentative findings of the investigation, and any outstanding requests for data and information.95
95. See also 2C00 – Prohibition Against Retaliation.
The facility inspection is an opportunity for COs to observe and evaluate the working conditions in departments or other organizational units of a contractor’s establishment. It is also an opportunity to observe the composition and concentration of groups by sex, race, ethnicity, and disability. COs also use the inspection process to observe work performed in different job titles, and to conduct brief focused interviews with supervisors and employees to obtain information about the facility and the work performed there. The CO will also conduct more formal interviews of supervisors, employees and the top union official, as appropriate, during the on-site visit.
By observing how employees complete their work, particularly in any job titles identified as problem areas, COs develop a better understanding of the functions and conditions of the job positions. This understanding contributes to a CO’s ability to make decisions and assess matters such as the relationship of certain job criteria for selecting individuals for certain jobs. For example, if females are underrepresented in a particular job title for which “the ability to lift 50 pounds” is a selection criterion, a CO may observe that the job is done with mechanical equipment doing the lifting rather than the employee. Further, the CO may observe that employees rarely lift 50 pounds without assistance from another employee. This observation allows the CO to question the contractor regarding:
- The timing and nature of the development of the selection criterion;
- The assessment that the criterion is job-related and consistent with business necessity;
- The changes in the selection process since the criterion’s development;
- The point in the selection process when the selection criterion is applied; and
- The contractor’s assessment of the validity of the selection criterion as a measure of whether an applicant can perform the job.
A facility inspection also allows COs to make observations regarding possible physical accessibility issues for employees with known disabilities. The presence of physical barriers does not mean that disability discrimination exists. Rather, a CO may use this opportunity to provide compliance assistance on providing reasonable accommodation to individuals with disabilities, including disabled veterans. The CO may also ask about the contractor’s process for receiving and handling requests for accommodation.
During the inspection, COs must visually confirm the display of EEO posters and AAP policy statements required under Section 503 and VEVRAA. Contractors are required to conspicuously display the “EEO is the Law” poster, the required supplement and the notice of employee rights under the National Labor Relations Act (NLRA) required by Executive Order 13496.96 Additionally, COs must observe and question, as appropriate, how the contractor provides notice to employees of the location and hours of availability of VEVRAA and Section 503 AAPs.97 A CO must take notes during the inspection to record his or her observations, or record the observations immediately following the inspection. The CO must type handwritten notes, using MS Word, before placing them in the case file. During the inspection or during off-site analysis, the CO may verify electronic postings. The CO must document his or her observations and findings in the SCER.
In appropriate circumstances, COs may also take photographs. However, if a contractor objects to the CO taking photographs, the CO must stop taking photographs and notify the district office of the contractor’s concern.
96. FCCM 2L – Equal Opportunity Clauses and Other Requirements.
97. 41 CFR 300.41 and 41 CFR 741.41.
The agency’s regulations require contractors to provide COs access to the contractor’s books, records and accounts to determine the contractor’s compliance with the laws administered by OFCCP.98 When a CO knows that he or she will likely need to obtain copies of materials, the CO must initiate a discussion with the contractor regarding the need to obtain copies of materials before the on-site review. Working out the logistics for obtaining copies of requested materials before the on-site review may help the CO avoid conflicts. This may also be useful when scheduling the time needed to obtain copies of the requested materials. If requested materials are available electronically, in a compatible format, the CO must accept the materials in electronic form. The CO must ensure that all requested data is present within the various materials.
Some of the types of records a CO will request and obtain before or during the on-site visit include:
- Job applications for every applicant for the jobs at issue;
- Personnel files;
- Relevant payroll and human resources information system (HRIS) data;
- Labor agreements;
- Policy and compensation manuals;
- Federal contracts, purchase orders and subcontracts;
- Company newsletters; and
- Externally and internally posted job opening announcements.
COs must photocopy, digitize, transcribe or summarize pertinent information, as appropriate. If summarizing, the CO must describe the source documents in detail and describe the summarizing process. Photocopied originals are preferable to document summaries.
If a contractor objects to providing photocopying facilities or if, for any other reason, the CO must use an off-site copying facility, the CO will take appropriate precautions to preserve, securely handle and maintain any personally identifiable information contained in these documents when removing original documents from the premises. COs must assure the contractor that the originals will be returned in a timely manner. It may also be helpful for COs, in coordination with a contractor official, to make a written inventory of the documents and materials that are being provided by the contractor for copying.
If the contractor refuses to provide access to materials or denies the CO the ability to copy requested materials, the CO will contact his or her supervisor to discuss the denial of access concerns. It may be necessary to prepare an SCN for denial of access following this discussion. Chapter 8, Resolution of Noncompliance, is a source of additional information on this particular point.
98.For a fuller discussion of the types of information that a CO might collect during an on-site review, see FCCM 2E – Collecting Information for Analysis.
One of the most important activities that COs perform during an on-site review is interviews with management and nonmanagement employees. When conducting the interviews, COs verify employment practices, policies, and procedures, and gain an understanding of the workplace EEO culture. It is imperative for COs to interview both management and nonmanagement employees to ensure that they have multiple perspectives on how the contractor’s affirmative action and nondiscrimination obligations have been implemented. A more detailed discussion covering interviews is in Section 2F below.
Upon completion of the necessary on-site review and evaluation of all information obtained, COs will discuss the tentative findings of the compliance evaluation with the contractor at the on-site exit conference. The on-site exit conference should be held with the contractor’s CEO or designee. The CO will reiterate to the contractor that Executive Order 11246, Section 503 and VEVRAA prohibit intimidation of, or retaliation against, anyone assisting or participating in the investigation.99 An exit conference does not mean that the on-site review is complete; therefore, COs should avoid making any statements that could lead the contractor to believe that the CO is no longer able to request a follow-up on-site or to seek additional information.
COs must schedule the exit conference for the final day of the on-site review. At this conference, the CO must be prepared to describe the aspects of the investigation and to discuss the tentative findings of the compliance evaluation in general terms. The CO will inform the CEO, or designee, of the next steps in the compliance evaluation process, of any outstanding or additional requests for information, and of the possibility that a PDN or NOV could be issued.
99. See also 2C00 – Prohibition Against Retaliation.
COs should make every effort to gather all necessary records and conduct all personnel interviews during the on-site review. If, however, the CO identifies the need for additional contractor records or personnel interviews after the on-site review ends, a return on-site review may be necessary. The CO must discuss this possibility with his or her supervisor.
When a second on-site visit is needed, the CO will follow the on-site procedures as described in this chapter. However, if the contractor can timely submit additional data or information without an on-site visit, the CO does not need to conduct a return on-site review, unless the contractor fails to provide the information.
If the contractor refuses to provide the requested data or information, or does not allow a follow-up on-site review, the CO will prepare an SCN for denial of access. More information on this issue is in Chapter 8, Resolution of Noncompliance.