Based on the results of the desk audit, the CO will develop an On-Site Plan that includes interviews of contractor management, employees (current and former) and applicants, as appropriate. The CO must meet with the contractor’s staff members who are knowledgeable about employment policies and practices. During these interviews, the CO will clarify any questions he or she may have regarding the contractor’s organization, structure, corporate culture and other issues identified during the desk audit. This is also the CO’s opportunity to become more familiar with the contractor’s informal or unwritten policies and practices, and to compare these to written materials and practices outlined in the AAP. Interviews with employees and applicants may provide further information regarding the application of the contractor’s procedures.
If reasonable accommodation for an interviewee is necessary, the CO will arrange for the interviewee to receive the accommodation. Additionally, if the interviewee needs a translator, the CO will arrange for this in advance of the interview or schedule the interview to ensure translation services are present.
Interviews may be informal or formal. An informal interview may occur during the facility inspection while a formal interview occurs during a scheduled meeting with a pre-planned interview outline or list of questions.
As the on-site review proceeds, there will be continuing discussions between COs and contractor personnel. COs must document in writing the content of these discussions as soon as possible. It is necessary for COs to review their notes of these discussions with the interviewee to ensure the notes accurately reflect the interviewee’s statements.
a. Reason for Interview. CO-initiated interviews are conducted with an identified purpose or goal. Reasons for interviews may include:
- Gaining understanding of contractor policies and procedures;
- Obtaining relevant general information;
- Corroborating information received from other sources; and
- Identifying additional areas for investigation.
Depending on the results of the desk audit, the CO will pay specific attention to the contractor’s employment practices including compensation, hiring, termination and promotion practices. The CO will also conduct interviews with managers and employees that focus on contractor practices concerning EEO under the laws OFCCP enforces.
b. Interview Plan. As a part of the On-Site Plan, the CO must develop appropriate interview outlines and/or questions and identify specific individuals to interview regarding each identified potential problem area or compliance issue. Each planned interview or group of interviews should have an Interview Plan that lists the topics the interview needs to address, including specific questions, if appropriate. Interview Plans will vary depending on whether the interviewee is a manager, other employee, or an unsuccessful candidate for hire, among other considerations. If there is an individual that the CO identified for an interview but did not interview, the CO will make a note in the case file as to why the interview did not take place.
c. Informing the Interviewee. The CO will tell each interviewee at the outset of a formal interview that:
- The CO will show the interviewee his or her statement containing the answers to the questions asked during the interview; and
- The CO will ask the interviewee to sign his or her statement.
The CO will inform each interviewee that knowingly providing false or inaccurate information is unlawful and will explain that the following phrase is included in the interview notes where the interviewee signs:
“I have read the above and it is true and accurate to the best of my knowledge.”
In addition, the CO must inform interviewees that the interview is kept confidential to the maximum extent possible. The CO must also inform all interviewees, regardless of their position with the contractor, that it is unlawful for the contractor to intimidate them or take retaliatory action against them for participating in an interview.
d. Contractor Representative Present at Interviews. When the CO conducts on-site interviews with nonmanagement personnel, the contractor does not have the right to have a representative present. However, when the CO conducts interviews with upper-level managers and directors that speak for, or make decisions on behalf of, the company, the contractor may have an attorney or another representative present. If the contractor wants a representative present during management interviews, the CO must first obtain written confirmation of the representation, including the contact information for the representative and the scope of the representative’s authority.105
A 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. An example may be when the manager is a member of a potentially affected group speaking about the potential discrimination, or his or her personal experience; or acting as a whistleblower. In that situation, the CO may need to contact the employee directly after the on-site review to conduct the interview off-site without the contractor’s representative present. 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.
e. Employee Representative Present at Interviews. An employee may request that a personal representative, such as a union representative or personal legal counsel, accompany him or her during the interview. Subject to the limitations described below, such a request is generally acceptable. However, the CO must discuss the presence of the representative with the interviewee privately to determine whether there may be a conflict of interest or whether the interviewee feels pressured into having the person present. When the employee wants a personal representative present during the interview, the CO must first obtain written confirmation of the representation including the contact information for the representative and the scope of the representative’s authority, if the CO does not already have the written confirmation.
The contractor does not have the right to have one of its representatives present during an employee interview – either as an observer or as the employee representative. If a nonmanagement employee wants a representative present, including a member of management, then the CO must honor the request. The CO can and should meet with the employee alone for the limited purpose of confirming that he or she was not coerced into asking for a management representative. The CO must consult with RSOL if there are any questions about the impact of the presence of a third party on confidentiality or privileges.
f. Preparing Formal Interview Statements. After a formal interview, the CO must ask each interviewee to read, sign and date an interview statement. Immediately, at the conclusion of the interview, the CO will review the questions asked and the answers given, and obtain confirmation that any direct quotes are accurate and that all paraphrases convey the interviewee’s intended meaning. The CO will promptly type the handwritten interview notes using MS Word in order to provide the interviewee with a formal interview statement to sign as soon as possible after the interview. The CO must enter the following phrase above the space where the interviewee will sign on the formal interview statement:
“I have read the above and it is a true and accurate to the best of my knowledge.”
If the CO cannot print a copy of the interview statement during the on-site review, the CO must ask the interviewee to sign and date the CO’s interview notes. The CO will mail or email the typed interview statement as soon as possible after the on-site review for the interviewee to sign and date. If the interviewee wants corrections made, the CO must incorporate the corrections and re-send the statement for the interviewee to sign. The CO maintains records of interview notes and each version of the interview statement in the case file. If an interviewee refuses to sign an interview statement, the CO will record this and the reason(s) for refusal to sign, if known.
g. Contact Information. At the conclusion of every interview, the CO must obtain the interviewee’s personal mailing address, contact telephone number, and email address. The CO must also provide each interviewee with his or her office contact information in the event the interviewee wants to add anything to his or her statement.
h. Informal (Unplanned) Interviews. At any point in the on-site review process, a potential witness may approach the CO to provide information related to the review. The CO must make every effort to meet or otherwise interview the potential witness. The CO will follow the interview procedures described in this section.
If, however, the potential witness is unwilling to be interviewed and only wants to provide the information, the CO must document the conditions under which the employee provided the information in a memorandum. For example, the CO records that the employee provided the CO with a document, briefly describes and attaches the document to the memorandum, and indicates in the memorandum that he or she was unwilling to be interviewed. The CO must then use other means to verify the credibility of the information provided in this manner.
i. Location of Interviews. COs normally conduct interviews during the on-site review phase of the compliance evaluation. However, the CO may conduct interviews via telephone, as appropriate. There may be situations when a contractor refuses to allow on-site interviews of nonmanagerial employees, when the CO needs to interview former employees, or when employees want their interviews conducted away from the establishment. When possible, the CO will attempt to explore alternatives with the contractor or the employee, as appropriate. One possible alternative is conducting interviews during meal breaks. Other options might include interviewing an employee on-site before the start of work shifts, or at the end of his or her shift. A CO may also conduct interviews at an off-site location.
j. Telephone Interviews. COs conduct telephone interviews only when it is not feasible to conduct the interview in person since the CO cannot observe the interviewee’s demeanor during a telephone interview, making credibility determinations more difficult. However, when telephone interviews of employees or applicants are necessary, the CO must type the resulting notes and send a copy to the interviewee for review, revisions, as appropriate, and signature. As with in-person interviews, COs will ask whether there is anyone else present with the interviewee to address any concerns this may create, as described above.
k. CO is Unable to Conduct Interview. If the CO is unable to conduct an interview, he or she should add a memorandum to the file explaining who was supposed to be interviewed, and why the interview did not occur.
105. See FCCM 1B00 for more details on what to request in the written confirmation of representation. If the CO already has written confirmation of the representative from the desk audit phase, there is no need to ask for it again.
COs must identify the managers that played a role in making employment decisions that the COs determine, through the desk audit review or other on-site analysis, need clarification. Examples of the types of questions that COs should ask and include in the Interview Plan are below.
- How did the contractor make the personnel or other decision? What procedures were used? Are these procedures customarily used? Are exceptions made to these procedures? If so, under what circumstances or when are exceptions made?
- How were the qualification criteria evaluated?
- What was the decision process? What was your role in the process or personnel action? Were you the sole decision-maker or part of a team of decision-makers? On what did you base the decision and what information did you have when making the decision?
- Is the contractor making efforts to reach out to or establish linkages with groups representing veterans, individuals with disabilities, women and minorities? Describe those efforts.
COs should always be alert to opportunities to ask necessary follow-up questions and pursue unexpected avenues of inquiry that open up during the interview.
When on-site, COs must interview current employees including those identified as possible members of an adversely affected class and members of the favored group. The COs must also interview other individuals who may have information that is relevant to potential problem areas. Examples of the types of information that COs should plan to obtain during the interview are below. COs should always be alert to opportunities to ask necessary follow-up questions and pursue unexpected avenues of inquiry that open up during the interview.
- Do you know whether management uniformly applies [describe the practice or procedure under investigation]? Does management make exceptions to the process? If so, under what circumstances or when are exceptions made?
- Do you have first-hand experience with the practice or procedure? If so, explain when and under what circumstances?
- What are the duties associated with the job at issue? Are the qualifications for the job necessary or related to job performance?
- Are you aware of company policies and procedures related to EEO? Do any of them prohibit the discussion of compensation?
- Are you aware of any instances where the company violated EEO policies?
- Do you know anyone else who might have knowledge about this practice or procedure?
During the on-site review, or while interviewing employees and managers, issues may arise that were not identified during the desk audit review. If this happens, the CO must appropriately follow up on the new issues. If the issue concerns a possible systemic violation by the contractor or is relevant to the compliance evaluation in progress, the CO must include the matter in the ongoing investigation. If the matter is one alleging an individual instance of discrimination, or if someone files a complaint during the ongoing compliance review, the CO must discuss the matter with his or her supervisor to determine how to best proceed.106
106. See also FCCM Chapter 6 – Complaint Investigations.