Client Bulletin No. 337 February 22, 2002 OFCCP: EMPLOYERS SHOULD PROCEED WITH CAUTION WHEN AGENCY OFFERS "FRIENDLY ASSISTANCE" As you have probably read in Constangy’s publications, the new head of the Office of Federal Contract Compliance Programs (OFCCP), Charles E. James, Sr., appears to be bringing a new and, some would argue, more employer-friendly atmosphere to the agency. Mr. James has said that the OFCCP will henceforth take a new "cooperative" approach with employers, with more emphasis on compliance assistance, and less on compliance enforcement (compliance checks, compliance reviews, corporate management reviews, and EO Surveys). "Self-monitoring by employers is more efficient than enforcement," Mr. James says. This is a welcome change from the OFCCP under the Clinton Administration, and, while there is no reason to believe Mr. James is insincere, employers should remain cautious when dealing with the "new and improved" agency. The OFCCP conducted 4,716 compliance reviews (comprised of both the desk audit and on-site stage) in fiscal year 2001 – up from 4,162 in fiscal year 2000. This was the highest number of reviews since 1992. The number of compliance checks has remained stable (2,459 in 2001, down only slightly from FY 2000 levels). And Mr. James acknowledges that employer compliance is "the bottom line." Perhaps a Dual Purpose? "Compliance assistance." One new OFCCP activity is the "compliance assistance" visit. Each regional office handles visits in its own way, but some will call the facility manager or human resources manager and say that they would like to stop by for "just a few minutes" for a "friendly visit" or to "drop off new regulations." And, by the way, they’d like to review the employer’s affirmative action plan while they are there, just in case they can "offer any pointers." Although this may sound like a friendly and even helpful suggestion, employers should be wary, and, as with any other type of visit from OFCCP, contact legal counsel and otherwise take steps to ensure they are fully prepared and have a planned strategy for handling the visit. If the compliance officer "offers" or "asks" to review the employer’s affirmative action plan either during the initial call or during the visit, it is appropriate for the employer to ask that such review be requested in writing and that it be scheduled for a mutually convenient time in the future. Even if the stated purpose of the visit is only to say hello and leave copies of the new regulations, employers should still be cautious and inform legal counsel before scheduling the visit. The good news is that legal consultation about these visits need not be expensive: often, a few simple guidelines, plus an "on-call" employment attorney should anything unexpected occur, should suffice to protect your company. The costliest course of action is to fail to seek assistance in advance. "Technical assistance." This sounds a lot like compliance assistance, but it is more in-depth. Many OFCCP offices are sending letters to contractors who are likely to be reviewed during the coming year and offering to answer their questions in advance. During on-sites, some compliance officers are inviting facility human resources managers to call OFCCP directly with any questions. Some district offices are even conducting training sessions and inviting multiple contractors to attend. Again, this sounds positive, but employers should be wary. If you have compliance-related questions, we caution against your posing them directly to OFCCP because, in doing so, you may identify your company to the Agency and perhaps imply your company is not in compliance. On the other hand, your company’s anonymity will be protected if you allow outside counsel to be the "filter" -- in other words, ask OFCCP the questions without identifying from whom they came -- and your questions will be a matter of attorney-client privilege. The same concern applies to training sessions conducted by OFCCP. If you choose to attend, we recommend you simply note your questions and, again, let legal counsel "filter" them after the training session is over. Finally, employers should be cautioned that, in offering "friendly assistance," OFCCP will likely interpret the regulations in a way that is most favorable to its own positions; thus, although it certainly does not hurt to know the agency’s position, we recommend that you get a "second opinion" from legal counsel. "Don’t let the handshake and the smile fool you." The friendly overtures we can expect from Bush’s OFCCP may require more vigilance than employers ever needed under Clinton’s watch. If you need additional information regarding this or any other OFCCP issue, please do not hesitate to contact the Constangy attorney of your choice.