1B Pre-Desk Audit Actions

This subsection covers information that Investigators gather through their initial contact with the contractor, including contact information for the contractor and the contractor’s representative, and any information that may preclude the evaluation (e.g., establishment is closed, the establishment is part of an approved FAAP agreement, or OFCCP has completed a review of the establishment in the past 24 months). If the contractor contests OFCCP’s jurisdiction or provides any information that may preclude the evaluation, the Investigator should follow the process outlined in subsection 1B04 below.

a. Contractor Information. Before issuing a Scheduling Letter and Itemized Listing, Investigators must verify the following information:

• The name of the highest-ranking management official at the establishment;
• The legal name of the company;
• The name and email of the person responsible for the preparation and implementation of the contractor’s AAPs; and
• The correct mailing address for the establishment.

If an establishment is part of a larger entity, the Investigator must obtain the name of the corporate chief executive officer (CEO), the name of the corporate person responsible for EEO and affirmative action matters and the correct corporate mailing address. Investigators should verify this information and update CMS as necessary.

b. Representation. A contractor’s statement about representation can come during the initial contact or at some later point. When a contractor indicates that it is or will be represented by counsel or a consultant company, an Investigator must ask the contractor to provide written confirmation of the representation, including:

• The contact information for the representative that includes the representative’s name, address, email, and phone number; and
• The scope of the representative’s authority, including whether the authority granted to the representative extends to negotiating a settlement, if necessary, on behalf of the contractor.

An Investigator must also ask the contractor to clarify in writing as a part of the representation confirmation whether:

• All contacts, including routine ones to make appointments or to clarify data or other information, should be made through the representative; and
• All correspondence should be provided only to the representative or if a copy is to be provided to the contractor.

The Investigator obtains the same written confirmation if a person indicates to the Investigator or another representative of OFCCP that he or she represents the contractor. After receiving written confirmation of representation, an Investigator must handle contacts and correspondence according to its terms for the duration of the evaluation. The handling of contacts and correspondence will change if the contractor specifies a different period or subsequently alters its instructions. Alterations of representation instructions must be in writing.

Investigators provide the contractor’s highest-ranking management officials copies of all substantive documents that they mail. For these purposes, we define substantive documents as documents that this Manual requires an Investigator to mail. This would include, for example, any Predetermination Notice (PDN), Notice of Violation (NOV), Show Cause Notice (SCN), and CA.

Investigators must update and maintain an evaluation’s correspondence in CMS for each compliance evaluation. This log is an invaluable tool and an integral part of tracking the progress and the status of the case. It is, therefore, important that Investigators keep the correspondence up to date with:

• Event summaries that begin with the initial contact with the contractor and continue through to the approval of case closing documents.
• Documentation of all telephone conversations, emails, correspondence and meetings associated with the evaluation, indicating the date, nature of the contact, person contacted, a summary of discussion or actions taken, and the Investigator’s name.

Records of telephone calls should include the time of the call. All meetings must include the date, location, and names of the people in attendance. In addition, Investigators must record all requests for data and records, and the dates the Investigator received these items. Any items received for the case should be uploaded into CMS. Investigators must record all events and actions as they occur.

Investigators must maintain a case for each scheduled compliance evaluation in the Compliance Management System (CMS). Investigators must add information and documents to the appropriate CMS file throughout the compliance evaluation. If enforcement becomes necessary, Investigators provide the compliance evaluation to the Solicitor’s Office for further action. It is critically important that all information obtained, observed or reported be part of CMS and remain there through case closure.

Therefore, Investigators must be sure that CMS contains all documents obtained or generated during the compliance evaluation, not just the material that supports the conclusions reached. For example, CMS should include both evidence that supports the Investigator’s violation findings, as well as evidence that supports the contractor’s rebuttal. CMS must contain all contractor records and unaltered copies of all email correspondences in paper or electronic format. Drafts of OFCCP memoranda are not included in CMS. Investigators retain only final versions of agency memoranda.

If an Investigator is submitting a case for enforcement, a Transmittal Memorandum, as discussed in Chapter 8 of this Manual on the resolution of noncompliance, must be in the appropriate file of CMS. A complete copy of at least one contract or subcontract establishing coverage during the entire period at issue is also required, continuing to the present, if available. Additionally, the enforcement submission must include copies of all relevant analyses, properly labeled, in electronic format. Below is a non-exhaustive list of files that should be included in CMS, as relevant:

• Investigator notes, worksheets and analyses, including any regression analyses;
• Witness statements that are appropriately labeled;
• Contractor records;
• Any contract coverage information provided by the national office’s Division of Program Operations (DPO) or copies of contracts;
• EEO-1 reports;
• Contractor extension requests for the AAPs and OFCCP responses, including extensions of time frames in a consent decree;
• All communications related to the compliance evaluation, including data and record submissions, information gathering and interviews, and any material resulting from contacts with third parties such as other government agencies or local interest groups;
• Closure documents, such as a CA including any previous CAs generated by any past reviews of this establishment;
• Copies of any collective bargaining agreements, fringe benefits and leave policy booklets, employee handbooks, apprenticeship or training agreements and any other similar contractor documents relevant to the establishment reviewed;
• Solicitor’s Opinions and memoranda associated with the review;
• Preaward Clearance Request letter and other related materials;
• Transmittal memoranda and additional conciliation efforts. For example, a record of any later conciliation efforts by the district office, regional office and national office, as appropriate, along with the results of those efforts;
• Progress reports the contractor submitted under a CA, along with OFCCP’s evaluation of those reports contains; and
• The contractor’s AAPs and Itemized Listing data evaluated in the review.

OFCCP uses the Scheduling Letter and Itemized Listing (See Figure F-2) to schedule a Supply and Service compliance evaluation and request AAPs and Itemized Listing data from the contractor. The Scheduling Letter and Itemized Listing are reauthorized for the agency’s use every three years by the Office of Management and Budget (OMB) if not earlier, should the agency seek it. Therefore, Investigators must review the most recently authorized Scheduling Letter and Itemized Listing to ensure that they are familiar with the documents and information requested from the contractor.

The most recently OMB-approved Scheduling Letter and Itemized Listing is sent by certified mail, return receipt requested, or by email with read receipt requested, to the highest-ranking official at the contractor’s establishment or functional unit, with a copy to the CEO at the contractor’s corporate headquarters unless the establishment and corporate headquarters are the same. The appropriate field office official signs the Scheduling Letter. The letter must include the name, email and telephone number of the Investigator who will receive the AAPs, and Itemized Listing data or the Investigator’s appropriate supervisor.

Investigators must contact the contractor within 15 calendar days after sending the Scheduling Letter and Itemized Listing to ensure that the contractor or the contractor’s representative, or both, fully understand the requests contained in the letter. If the contractor has questions, Investigators will provide technical assistance to clarify the contractor’s obligations and the compliance evaluation process. The Investigators should establish themselves as the primary point of contact for the compliance evaluation, provide an overview of what to expect during the evaluation, and explain the SCN process for failure to meet deadlines for submitting the AAPs and Itemized Listing information.

The contractor may challenge OFCCP’s authority to schedule it for a compliance evaluation. For instance, the contractor could assert that the establishment is closed, the establishment is part of an approved FAAP agreement, or it does not have a large enough federal contract or the requisite number of employees to trigger OFCCP’s AAP requirements. The contractor might also inform the Investigator that it has been less than 24 months since it received a closure letter from OFCCP for a prior compliance evaluation or since the end of the monitoring period for a CA or consent decree it entered with OFCCP to remedy violations uncovered during a prior evaluation.

If the contractor challenges the agency’s jurisdiction for any reason, the Investigator must elevate the issue to the attention of DPO, in coordination with their supervisor and regional office. DPO will conduct research to determine if OFCCP has jurisdiction. If jurisdiction is then established, yet the contractor continues to dispute OFCCP’s jurisdiction, the Investigator will recommend issuance of a SCN. Chapter 8, Section D explains the use of SCNs. If jurisdiction is not established, then the Investigator will receive instruction to administratively close the compliance evaluation using Letter L-1 – Sample Administrative Closure Letter for Supply & Service and Construction Compliance Evaluations. OFCCP’s current jurisdictional thresholds can be found at https://www.dol.gov/ofccp/taguides/jurisdiction.htm 

If a region schedules a compliance evaluation of an establishment that is covered by a functional or business unit, the regional office and Investigator must contact DPO to verify if the establishment is covered within an approved functional or business unit. The DPO will advise the regional office and Investigator whether to administratively close the evaluation.

Simultaneous with the mailing of the Scheduling Letter, Investigators will seek information regarding the employment policies and practices of the contractor being scheduled from the Equal Employment Opportunity Commission (EEOC), Veterans’ Employment and Training Service (VETS), 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.

a. EEOC and State and Local Fair Employment Practices (FEP) Agencies. The Investigator sends an inquiry letter using Letter L-2 – Sample Inquiry Letter for Requesting Complaint Data from EEOC and State and Local FEPs simultaneous with the mailing of the Scheduling Letter. 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, Investigators must follow up by telephone with any agency that failed to respond or from which additional information is needed.

OFCCP has a Memorandum of Understanding (MOU) with EEOC that includes provisions about information sharing, complaint referrals, coordination and consultation. Investigators are urged to become familiar with the provisions of this MOU.

b. Veterans' Employment and Training Service, Employment Service Delivery System and DOL Enforcement Agencies. Investigators must contact VETS and local employment service delivery systems (ESDS) in writing to request any information that could be pertinent to the pending review, including complaints. Investigators can find sample correspondence in this Manual, including Letter L-3 - Sample Letter For Requesting Job Listing From Employment Service Delivery Systems (Including American Job Centers), and L-4 - Sample Email for Requesting Information from Veterans’ Employment and Training Service. When conducting compliance evaluations and complaint investigations, Investigators must query the VETS-4212 database online to verify that a federal contractor completed the annual reporting requirements for the appropriate reporting year. Investigators must then record the results of these inquiries in CMS. Moreover, the information in this database, in combination with data provided under 41 CFR 60-300.44(k), may be useful when analyzing an employer’s recruitment and hiring practices. As required under 41 CFR 60-300.60(c), OFCCP provides a periodic report to VETS of contractors who have not filed the VETS-4212.

Additionally, Investigators should check the DOL Enforcement Database at https://enforcedata.dol.gov/ for closed complaints and compliance evaluations of the contractor’s establishment, and may reach out to other DOL agencies such as the Wage and Hour Division (WHD) or the Occupational Safety and Health Administration (OSHA) for information on the compliance history of the establishment. For example, the WHD may have filed Family and Medical Leave Act (FMLA) violations related to the contractor that is the subject of a compliance evaluation.

Investigators must carefully examine all information regarding EEO complaints against a contractor that they receive from federal, state, and local agencies in response to a letter of inquiry. Investigators enter basic information about these complaints in CMS, 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.

Investigators 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 job areas, 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, Investigators 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, Investigators will contact the appropriate EEOC office or state or local FEP agency to arrange the review of relevant discrimination complaint files as part of the compliance evaluation. This review can be particularly useful when, based on the result of the desk audit, an Investigator identifies potential systemic problems in complaint areas.

Upon receipt of the AAPs and Itemized Listing data, Investigators must compare any information a contractor provides concerning current or past complaints to the information received from other agencies. Investigators 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.

If, during the conduct of a compliance evaluation, an Investigator finds that the contractor is involved in litigation or is under a court order on EEO matters, then the Investigator must identify:

• The EEO issues involved;
• The court and the parties; and
• The case name and number.

The Investigator must bring the matter to the attention of their supervisor. The field office, in consultation with the regional Solicitor of Labor (RSOL), will determine whether the litigation or court order imposes limitations on the compliance evaluation.

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 entities 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 Investigators may not be knowledgeable about the local organizations in the area. In these instances, the Investigators must review the resource files and introduce themselves to representatives from the various organizations. DPPD and the Regional Office Outreach Coordinators (ROCs) may also be useful resources.

If a contractor is located near an Indian and Native American Reservation with a Tribal Employment Rights Organization (TERO) or other employment organization on the reservation, Investigators must contact these organizations. Chapter 2 of this Manual discusses the importance of linkages and how an Investigator can establish relationships with local organizations representing covered group members.

Investigators must review CMS to help determine whether another OFCCP office recently reviewed or is reviewing the same contractor when scheduling contractor establishments for compliance evaluations. If another OFCCP office is currently reviewing a contractor selected for an evaluation, the Investigator 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. An example of this issue may be a test that is not validated and has an adverse impact on specific groups.

Investigators may also examine closed case files to identify issues relevant to the current evaluation. Investigators should 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, Investigators 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. Additional information about EEO Complaints Filed with or by Other Agencies can be found in subsection 1B06. Any violations found in these past compliance actions must be recorded in CMS. While the existence of a past problem is not considered evidence of the existence of present problems, Investigators must be alert to any indications that past problems remain unresolved, have recurred or that similar problems have arisen.