Documentation is Key to Surviving OFCCP Audit
December 2, 2010
Documentation of employment activities and workplace investigations is critical for all employers. Federal contractors subject to affirmative action compliance audits by the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) must be particularly diligent. The existence or absence of appropriate documentation during an OFCCP compliance audit often dictates the length and ultimate result of the audit.
Some of the records that are essential to the successful completion of an affirmative action audit are:
- proof of listing all non-executive vacancies with the local office of the Department of Labor;
- copies of outreach letters/e-mails to organizations showing efforts to attract qualified minorities, women, individuals with disabilities, and veterans;
- applicant tracking data, identifying race, gender, position applied for, and disposition of all “applicants;”
- identification by race and gender of hires, promotions, transfers, demotions, and terminations;
- annual adverse impact analyses of personnel activities, including applicant/hires, promotions, transfers, demotions, and terminations;
- annual analysis of compensation for potential disparities due to race and/or gender; and
- copies of EEO-1 and VETS-100 filings for the prior three years.
An employer that has not sufficiently documented its hiring and other personnel decisions can face serious problems during an audit, where it has the burden of explaining why particular decisions were made. If the employer does not have a system of recording and maintaining information about its hiring and other personnel decisions, it will be very difficult to recreate the decision-making process during the audit.
Not only must a federal contractor ensure that all personnel activity is documented in order to successfully navigate an audit, it must also take steps to maintain the documentation on a longer term basis. While OFCCP regulations require covered employers to maintain all applicable records for a minimum of two years, many federal and state record retention laws exceed that requirement. Federal and state statutes of limitations on bringing employment claims may also counsel in favor of retaining records for longer than the two year period required by OFCCP.
One record OFCCP will not review during new audits is the I-9 Form used by employers to verify the identity and U.S. employment eligibility of hired individuals. OFCCP Director Patricia Shiu recently announced that OFCCP will no longer inspect employers’ I-9 Forms during on-site compliance reviews. Director Shiu indicated that a new directive pertaining to I-9 inspections would soon be issued.
