6D Investigating the Complaint
If the regional office decides to retain and investigate complaint allegations, it will assign the complaint to the field office located in the jurisdiction of the establishment or construction site where the alleged discrimination occurred. When transmitting a complaint to a field office for investigation, the regional office will include all attachments to the complaint, all correspondence sent during complaint perfection and a transmittal memorandum. The transmittal memorandum and the complaint will indicate under which law(s) the complaint is filed (i.e., Executive Order 11246, Section 503 and/or VEVRAA) and the basis or bases for the complaint (race, color, religion, sex, sexual orientation, gender identity, national origin, disability, status as a protected veteran, retaliation, or inquiring about, discussing or disclosing pay).318
After receiving the assignment, the CO will begin to investigate the complaint.
318. If the complaint alleges noncompliance with EO 13496, the CO should follow the procedures described in Directive 2010-01, “Verification Procedures under E.O. 13496, Notification of Employee Rights under Federal Labor Laws, and the Department of Labor’s Implementing Regulations at 29 C.F.R. Part 471,” June 15, 2010.
The field office must take all necessary steps to complete the complaint investigation within 60 calendar days of receiving the assignment from the regional office. The Regional Director may grant an extension of this period if the field office shows good cause. The extension, if granted, should not exceed 60 days; this results in a total of no more than 120 calendar days to complete the complaint investigation. Examples of good cause include, but are not limited to, complex legal issues, unavailability of witnesses, untimely responses from the contractor or the number of complainants. The regional office must document the request for extension as well as the disposition of that request.
The CO should address all letters, including the 10-Day Notice Letter, concerning a complaint to the senior official at the appropriate contractor establishment, or to the contractor’s authorized representative,319 with a copy for the CEO at the corporate address, except when the contractor is a single location establishment. The CO should send the letters by certified mail, return receipt requested and retain the documentation certifying receipt of the correspondence.
For the complainant or the complainant’s authorized representative, the CO will send correspondence related to the complaint via certified mail, return receipt requested, facsimile or email. If by facsimile or email transmission, the CO should take steps to ensure confidentiality. The CO should maintain documentation that certifies the correspondence was received.
319. See FCCM 6D04.
At the beginning of the investigation, the CO will provide the contractor notice that the complaint is being investigated by OFCCP and include a full copy of the complaint with the notice, except to the extent it contains the types of information described below.320 The CO must also notify the complainant that OFCCP is investigating the complaint and include a copy of the redacted complaint that was provided to the contractor.321
The CO will redact the following information so that the remaining text reads as smoothly as possible.
- The name and other information that would easily identify someone other than the complainant who might suffer retaliation, be construed as an informer, or suffer embarrassment or other unwarranted invasion of privacy.
- Obscene or inflammatory language, unless it is relevant to the allegations.
- Names and allegations against more than one company. The CO should delete the name and allegations against company #1 from the complaint copy provided to company #2, and vice versa.
- Identifying characteristics of individuals in a third-party complaint (e.g., description of unique characteristics, unique job title or position) if the individual has not signed the complaint or authorized release of his or her identity.
However, if the necessary redactions are so extensive as to make the complaint incomprehensible, the CO may prepare a complaint summary to forward to the contractor.
320. See Letter L-15, Letter Notifying Contractor of Investigation.
321. See Letter L-16, Letter Notifying Complainant of Investigation.
A contractor or complainant may designate an attorney or other representative as his or her contact person with OFCCP prior to or during a complaint investigation. Such designation shall be at the initiation of the contractor or complainant being represented.
a. Written Designation. The designation of a representative must be in writing by the contractor or complainant to an OFCCP District or Regional Director. Either the complainant or the senior official of the contractor must sign the written designation letter. If the field office receives notification of the designation in a form other than in writing, the CO should contact the requester (contractor or complainant) and advise them of the necessary written designation letter. The correspondence should provide the name, address and telephone number of the representative. In addition, the correspondence should clearly describe the extent of the representative’s authority, specifically:
- If all contacts, including routine contacts to make appointments or to clarify submitted data or other information, should go through the representative;
- If the representative has the authority to negotiate settlements for the contractor or complainant; and
- If the CO should mail correspondence to the representative only, or if he or she should mail copies to the contractor or complainant as well.
The CO should send to the highest-ranking management official of the company a courtesy copy of all substantive documents that this Manual requires to be mailed to the contractor, even if the contractor designates a representative.
b. Duration of Designation. Unless the contractor or complainant indicates otherwise in the written designation letter, the designation shall only be for the duration of the complaint investigation and any applicable enforcement period.
Upon receiving a complaint to investigate, a CO establishes a case file. COs should maintain all documents, correspondence, interview notes and records of contact, including emails and telephone calls, pertaining to the complaint in this file. When the investigation is complete, the case file should contain sufficient documentation to support either an enforcement recommendation based on a finding of a violation(s) or a decision to close the complaint investigation based on a finding of no violation.
a. Maintenance of the Case File. Regarding the maintenance of records, COs should follow the general principles below:
- Date all telephone, email and written communications; identify who participated in the communication by name and position; and accurately reflect any agreed upon commitments.
- Keep all documents from the complainant, contractor or others in their original condition. COs should make copies and label documents as copies if they need to make alterations to or notes on a document.
- Use the case file to document and maintain all interview statements, whether the interview is conducted in person or by telephone, or some other electronic means. COs should record statements or observations as soon as possible after the conclusion of the interview or observation. The interview statement must note the name and title or position of the person conducting the interview, the name and position of the person interviewed, when and where the interview took place and the names of any other people who may have been present (e.g., legal counsel, a personal representative or interpreter).
- Record newly obtained information or observations in clearly legible writing or, preferably, in an electronic format. COs should type handwritten notes for the case file.
- Create and clearly label a section in the case file for all evidence, including evidence that supports conclusions the CO draws regarding the complaint allegations. Supporting evidence may include CO notes, worksheets, contractor data or documents and any other materials relating to an allegation.
- Keep all records and information regarding a complaint investigation confidential.
b. Case File Contents. The case file will contain seven separate files labeled as follows and containing the listed contents.322 COs should cross reference the files, as appropriate. Only the final versions of documents created by the CO or other OFCCP staff should be included in the case file, not drafts of documents.
1. Complaint and Data Submitted by the Complainant. This file will contain the complaint (e.g., the completed CC-4 form) and any documentation or information the complainant submitted, including the envelope used to mail the complaint. Documents may include, for example, any informal letter of complaint, list of witnesses, and supporting documents. These items should be on the right side of the file folder.
On the left side of the file folder, the CO should place a copy of the complaint report sheet for the establishment that he or she obtained from CMS (i.e., the CC-58 report). Underneath this form, the CO should include any CMS extensions requested during the investigation and responses.
2. Case Chronology, Correspondence and Meeting Notes. This file contains all correspondence and any attachments. This includes, for example, any materials from contacts with the contractor, union, witnesses, and consultants. It may also include memos to file, but not investigative notes the CO prepared and used in reaching factual and legal determinations. Correspondence should be in chronological order with the most recent on top.
The Case Chronology Log (i.e., the CC-53 form) will be attached to the left side of the file and placed on top. The CO shall maintain the Case Chronology Log electronically, as described in FCCM 1B01.323
3. Investigative Material. This file will contain the investigative materials. The CO should index and tab the materials. The file should contain the following materials:
- The Investigative Plan;
- The Investigative Report;
- All interview statements;
- The CO’s investigative notes;
- Any statistical evidence;
- Any comparative evidence; and
- Any anecdotal evidence.
These materials may be voluminous. If so, the CO may appropriately label, tab and index separate folders to contain the materials.
4. Medical/Veteran Documentation: This file, organized with an index and tabs, will contain any necessary protected veteran status documentation and pertinent medical documentation, if any. The documents should have labels clearly stating the source of the information (e.g., complainant, contractor third party). The CO must label and treat File 4 Medical/Veteran Documentation as “confidential.” The file should contain, where appropriate:
- Medical releases (these will not be needed in most cases);
- Proof of protected veteran status under VEVRAA, if VEVRAA allegations are present (such as the DD-214);
- Proof of disability or of limitations due to a disability, if pertinent to the case; and
- Work restrictions.
5. Legal: This file will contain any documents related to legal activity, including:
- Notice of Investigation Report (place on top);
- CA (on top of report, when complete);
- Solicitor’s Opinion;
- JRC meeting notes and reports;
- FOIA and Privacy Act determinations;
- Enforcement recommendations; and
- Jurisdictional and contract coverage information (on the bottom).
6. Employment Handbooks, Collective Bargaining Agreement (if applicable) and Miscellaneous. On the right side of this file, organized by an index and tabs, will be copies of any relevant collective bargaining agreements, employee handbooks, benefits and leave policy materials, and any similar contractor materials. The CO should place any items that are not otherwise listed and contained in other case file sections here.
7. Historical Review Results. This file will contain copies of any available closure letters and documents from previous complaint investigations of this establishment. The CO should note pertinent information regarding compliance evaluations of the establishment here, as well as include the closure letter for the current investigation.
The district office should maintain the historical file indefinitely. If the district office conducts another investigation of the establishment, this file becomes a part of the new investigative file. If the district office is going to retire the case file, the district office should remove and retain the historical file while filing the remainder of the case file.
322. See Appendix A-8 – Index for a Complaint File.
323. See Figure F-2 – Case Chronology Log.
The CMS tracks and monitors the processing of complaints filed with OFCCP. COs have specific responsibilities for entering data and information into the automated system. These responsibilities begin with the receipt of the complaint by the regional office and end when the CO closes the complaint file. The COs can find specific instructions in the CMS Manual.