In addition to our Week In Review (WIR) and OFCCP Compliance Alerts, we recently added a subcategory called Compliance Tips. These posts are quick snippets of advice for federal contractors, provided by a variety of field experts. This week’s tip is from special guest Joyce Morgan, Owner of Morgan Consulting Services, LLC and former Deputy Regional Director at the United States Department of Labor.
Today’s OFCCP Compliance Tip: Determining the “evaluation period” in an OFCCP audit
When a Federal contractor is undergoing an OFCCP audit, it is common practice for OFCCP to request additional documentation or data to ensure total compliance with the Executive Order as well as with the laws of Section 503, for individuals with disabilities, and 38 USC 4212, for protected veterans. OFCCP’s Federal Contract Compliance Manual (FCCM) defines the evaluation period as “at least the last full AAP year;” meaning 12 months. The FCCM goes on to say that “COs [Compliance Officers] must also examine the current year performance if the contractor is six months or more into its current AAP year.” This means that the evaluation period, which normally covers 12 months, could cover an 18-month period of time. Notwithstanding its own FCCM, OFCCP is routinely asking for additional information for the past 2 years. When such a request is made, the data should only be provided for the evaluation period with a reference to 1C03 of OFCCP’s FCCM, Evaluation Period: http://www.dol.gov/ofccp/regs/compliance/fccm/FCCM_FINAL_508c.pdf. However, there is clearly an exception to this rule. That exception is when OFCCP has identified indicators of a potential violation. In such case(s), OFCCP will request documents for a 2-year period beginning with the date of the contractor’s receipt of the scheduling letter which opened the audit. Also keep in mind, however, that OFCCP may have the jurisdiction to not only go back 2 years but can, in some instances, request data going forward as well if there is evidence that the suspected violation is continuing. Reference the FCCM at 1G “Evaluation Period Covered.”
