3E Pre-Review Preparation: Scheduling and Coordination with Other Agencies
This section discusses the various steps and actions that COs must take prior to starting a compliance evaluation of a contractor establishment.
The CO should notify the senior official at the contractor’s establishment by telephone of the scheduled review. The telephone contact will include a discussion of where the review will take place, set a date for the review to begin, indicate the need for an on-site work area and confirm the location and availability of books and records that contain relevant information on the contractor’s aggregate workforce in the covered area.
The CO must provide the contractor with written confirmation of the date and time of the review at least three business days prior to the on-site unless there are exigent circumstances. The letter is sent certified mail, return receipt requested, to the senior official at the contractor’s establishment with a copy to the CEO at the corporate address.192 Mailing to both addresses is required unless the establishment and corporate offices are the same. The notification includes an enclosure that specifies items that the contractor is to make available for inspection and copying during the review.
192. Letter L-9 – Construction Compliance Evaluation Notice and Enclosure.
COs must prepare and maintain a Case Chronology Log for each compliance evaluation. This log is an integral part of the case file and is an invaluable tool in tracking the progress and the status of the case.193 It is, therefore, important that COs keep the Case Chronology Log current. A Case Chronology Log includes:
a. Event summaries that begin with the initial contact with the contractor and continue through to the approval of case closing documents.
b. Documentation of all telephone conversations, e-mails, correspondence and meetings associated with the evaluation, indicating the date, nature of the contact, person contacted, summary of discussion or actions taken, and the CO’s name.
Records of telephone calls in the log should include the time of the call. All meetings must include the date, location and names of the people in attendance. In addition, record in the log all requests for data and records, and the dates the CO received these items. COs must record all events and actions as they occur.
Many COs print a hardcopy of the Case Chronology Log to facilitate their ability to write in the day-to-day events and activities as they occur. This practice is acceptable, as long as the final, official Case Chronology Log included in the case file is typed, legible and maintained electronically.
193. See FCCM 1B02 – Creation and Maintenance of the Case File; Figure F-2 – Case Chronology Log (CC-53).
COs must create and maintain a case file for each scheduled compliance evaluation. The case file generally consists of various folders so, in order to create a case file, COs must create individual folders using the below headings.194
a. Folder 1: Construction SCER Findings (See FCCM 3Q)
b. Folder 2: Case Chronology Log, Correspondence and Meeting Notes
c. Folder 3: Employment Handbooks, Collective Bargaining and Other Agreements, and Miscellaneous Items
d. Folder 4: SOL Opinions, JRC Memoranda and Post-Construction SCER Update
e. Folder 5: Progress Reports
f. Folder 6: Historical Review Results
g. Folder 7: Monthly Employment Hours and Pre-Construction Conference Materials
COs add information and documents to the appropriate folder throughout the course of the compliance evaluation. If enforcement becomes necessary, COs provide the compliance evaluation case file to the Solicitor’s Office for further action. It is critically important that all information obtained, observed or reported be part of the case file and remain there through case closure.
Once again, maintaining these files is crucial and includes labeling the folder and any additional folders or subfolders needed (e.g., Folder 1A, 1B). Labeling is especially useful when the material in a folder is voluminous. COs must arrange the documents in each folder by date, with the most recent document on top. COs are required to attach certain documents in each folder to the left or right side of the folder, as indicated below. Generally, whenever there are ten or more separate documents in a folder, the CO must prepare an index and place it in the front of that folder.
A complete and thorough case file is critically important, especially in the event that enforcement becomes necessary. Therefore, COs must be sure that the case file contains all documents obtained or generated during the compliance evaluation, not just the material that supports the conclusions reached. This means, for example, that the file includes both evidence that supports the CO’s violation findings, as well as evidence that supports the contractor’s rebuttal. The case file must contain all contractor records and unaltered copies of all e-mail correspondences in paper or electronic format. Drafts of OFCCP memoranda are not included in the case file; COs retain only final versions of agency memoranda.
If a CO is submitting a case for enforcement, a Transmittal Memorandum, as discussed in Chapter 8 of this Manual on the resolution of noncompliance, must accompany the case file. A complete copy of at least one contract or subcontract establishing coverage during the period at issue, continuing to the present, is also required. Additionally, the enforcement submission includes copies of all relevant analyses, properly labeled, in electronic format. Remember to keep a copy of all files submitted for enforcement in the appropriate field office.195
194. Though the case file folder numbers and titles do not change, the case file contents may vary based upon the investigative procedures used in the compliance evaluation, and the availability and existence of specific documents.
195. See Appendix A-5 – Index for a Construction Review.
Simultaneous with the mailing of the on-site confirmation letter, COs will seek information regarding the employment policies and practices of the contractor being scheduled from the EEOC, VETS (if appropriate) and other EEO and labor law enforcement agencies. Such information provides a better understanding of the contractor’s workforce and operations, and may indicate potential problem areas.196
a. EEOC and State and Local FEP Agencies. The CO sends an inquiry letter197 simultaneous with the mailing of the Construction Compliance Evaluation Notice. The inquiry letter goes to the appropriate district office of the EEOC, and to the appropriate state and local FEP agencies. It requests information on discrimination complaints filed against the contractor, and any other information that may be pertinent to assessing the contractor’s EEO posture. After 15 calendar days, COs must follow up by telephone with any agency that failed to respond or from which additional information is needed.
OFCCP has an MOU with EEOC that includes provisions about information sharing, complaint referrals, coordination and consultation. COs are urged to become familiar with the provisions of this MOU.
b. VETS, ESDS and DOL Enforcement Agencies. Unless jurisdiction is based solely on federally assisted construction contracts, COs must contact the regional VETS office and the appropriate local ESDS to request any information that could be pertinent to the pending review, including information regarding the contractor’s compliance with the mandatory job listing requirements of 41 CFR 60-300.5(a).198 When conducting compliance evaluations and complaint investigations, COs must query the VETS-4212 database to verify that a federal contractor completed the annual reporting requirements for the appropriate reporting year. Moreover, the information in this database, in combination with data provided pursuant to 41 CFR 60-300.44(k), may be useful when analyzing an employer’s recruitment and hiring practices. OFCCP provides a periodic report to VETS of contractors who have not filed the VETS-4212.199
Additionally, COs should check the DOL Enforcement Database at https://enforcedata.dol.gov/ for closed complaints and compliance evaluations of the contractor’s establishment, and contact other DOL enforcement agencies to identify the number, types and status of any complaints filed against the contractor. For example, the WHD may have filed FMLA violations related to the contractor that are the subject of a compliance evaluation.
196. COs would not contact VETS for information if jurisdiction is based solely on federally assisted construction contracts.
197. A sample of this letter is in this Manual as Letter L-2, Sample Inquiry Letter for Requesting Complaint Data from EEOC and State and Local FEPs.
198. Sample letters are in this Manual, including Letter L-3, Sample Inquiry Letter for Requesting Job Listing Requirements from Employment Service Delivery Systems, and L-4, Sample Inquiry Letter for Requesting Information on Pending Review from Veterans’ Employment and Training Service.
199. 41 CFR 60-300.60(c).
COs must carefully examine all information regarding complaints against a contractor that they receive from federal, state and local agencies in response to a letter of inquiry. COs enter basic information about these complaints in I. Background of the Construction SCER, including:
- The agency with which the complaint was filed;
- The jurisdictional or legal basis (e.g., race, sex) of the complaint;
- The current status of the complaint; and
- The area of the contractor’s workforce involved in the complaint.
COs will note any patterns in the types of complaints filed and any discrimination findings made on them. For example, there may be a clustering of complaints filed by employees in certain trades, or by applicants or employees from a particular race, religion, ethnic group or sex; by covered veterans; or by individuals with disabilities. As the review progresses, COs must cross-reference complaints to any potential problem areas they identify. There may be, for example, indications of a lack of good faith efforts, statistical indicators of discrimination, or concentration or underrepresentation in areas where complaints were filed.
When appropriate, COs will contact the appropriate EEOC office or state or local FEP agency to arrange to review relevant discrimination complaint files as part of the compliance evaluation. This can be particularly useful when a CO identifies potential systemic problems in complaint areas.
On-site, COs must compare any information a contractor provides with respect to current or past complaints to the information received from other agencies. COs will note discrepancies and information not provided by the contractor for possible further investigation during the review, and will seek an explanation and additional information from the contractor.
Each field office must maintain resource files on the communities within its geographic area. For each community, these files should identify local organizations that represent or provide services to protected groups. These would include groups and organizations representing or servicing women, racial and ethnic minorities, veterans, individuals with disabilities, and individuals who identify as lesbian, gay, bisexual or transgender. Some COs may not be knowledgeable about the local organizations in the area. In these instances, they must review the resource files and introduce themselves to representatives from the various organizations. The Communications Team in the national office and ROCs may also be useful resources.
If a contractor is located near an Indian and Native American Reservation with a TERO or other employment organization on the reservation, the CO must contact INAERP before making contact with these organizations. Chapter 2 of this Manual discusses the importance of linkages and how a CO can establish relationships with tribal communities, and Indian and Native American community-based organization located near construction projects.
COs must determine whether another OFCCP office recently reviewed or is reviewing the same contractor when scheduling a compliance review. If another OFCCP office is currently reviewing the selected contractor, the CO or the supervisor must contact the supervisor of the other OFCCP office to discuss what issues, if any, are present in their ongoing case. This is particularly important for detecting company-wide practices that result in discrimination.
COs may also examine closed case files, or OFIS, to identify issues relevant to the current evaluation. They will also note the terms of any CA or consent decree, including back pay, hires and other remedial measures contained in the CA or consent decree. In addition, COs must determine whether a contractor has been subject to an OFCCP complaint investigation and, if so, review the complaint file for any violations or problems identified. Any violations found in these past compliance actions must be recorded in the Construction SCER at I. Background Information. While the existence of a past problem is not considered evidence of the existence of present problems, COs must be alert to any indications that past problems remain unresolved, have recurred or that similar problems have arisen.
If the administering agency is the Federal Highway Administration, at DOT, a DOL-DOT MOU requires that DOT be notified of the scheduled review.200
200. See “Interim Memorandum of Understanding Between the Department of Labor and the Department of Transportation” signed 1979.