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Contractors are expected to scrupulously document their efforts to broaden recruitment, detect discrimination and to prepare for potential OFCCP compliance evaluations. OFCCP should similarly be expected to document and make readily available to the public its enforcement accomplishments. Doing so would be consistent with the pledge of government transparency on which this administration prides itself. It would sensitize contractors to issues of concern to the agency and would help contractors target their compliance efforts to the areas most likely to prove problematic in a compliance evaluation. It would also allow the public to more readily see whether or not OFCCP is using their tax dollars effectively to increase affirmative action and combat discrimination. While individuals and organizations can request this information through the Freedom of Information Act (FOIA) requests, and procedures for doing so are linked to the OFCCP homepage, they should not need FOIA to obtain basic enforcement statistics.
The public should not have to rely on Freedom of Information Act requests and publications from outside the agency to get a picture of OFCCP accomplishments on a year by year basis. Finding such information should be as easy as accessing OFCCP’s homepage and clicking a button. Unfortunately, this is not currently possible. It is my suggestion that OFCCP develop and maintain such a section.
OFCCP should dedicate a prominent section of its website for its own enforcement statistics. There is a section on the OFCCP homepage labeled “Latest Numbers” but these numbers are not OFCCP enforcement numbers. Rather they include minimum wage, employment rates and other general labor statistics. A section dedicated to enforcement numbers is noticeably absent even though OFCCP is capable of providing this information.
A section on OFCCP enforcement statistics should provide both statistics that document OFCCP’s results on a nation-wide basis as well as statistics broken down by region. OFCCP has six regions and the number and types of violations can vary from region to region because of the different types and numbers of businesses operating in each of those regions. Having both types of statistics will help contractors understand OFCCP’s overall objectives and the types of violations most often cited by the region or regions where their facilities are located.
An enforcement statistics section on the website should provide data for several fiscal years so that contractors and the public can detect enforcement trends and shifts in enforcement priorities over the years. Providing such data would also show whether there is any correlation between increased budget, staffing, or regulations and increased enforcement accomplishments.
Enforcement statistics should include the total number of Conciliation Agreements (CAs) entered into by fiscal year. OFCCP’s fiscal year runs from October 1 to September 30. The 2013 fiscal year, for example, just ended on September 30, 2013. CA statistics should be separated by category. Supply and service CAs would be one category and Construction a separate category. The requirements for supply and service contracts with the government are significantly different from the requirements for those providing construction under a government contract. By dividing the information into two categories a contractor can more readily access the data most relevant to the type of contract it has with the government.
CAs Resolving Discrimination Violations
CA statistics should be further divided by the type of violations remedied. CAs resolving discrimination violations should be identified separately from CAs with only technical violations. Under the report on CAs resolving discrimination violations OFCCP should provide data on the particular type of employment issue(s) involved. For example, how many cases resolved discrimination in hiring, how many involved compensation discrimination, how many promotion discrimination violations and the like. With respect to at least compensation discrimination, OFCCP should provide a definition of what it considers a compensation case. For example, would a promotion case be included as a compensation case, as well, if the promotion led to a salary increase? A clear description of what is included will make it easier for the public to understand the data and draw appropriate conclusions from it.
CA statistics for discrimination violations should also provide data that shows which protected bases were included in the CAs. For example, one should be able to look at the section on discrimination enforcement CAs and be able to tell how many cases involved women, how many involved African Americans, Hispanics and other racial ethnic categories, individuals with disabilities and protected veterans, etc.
OFCCP should also provide data on the total monetary remedies obtained through its discrimination conciliations along with a brief explanation of what is included in monetary remedies. For example, in the Clinton and Bush administrations annualized salaries which projected the monetary value of a year’s employment in a hire that resulted from a Conciliation Agreement was included in the monetary recoveries reported by the agency. In the Obama administration annualized salaries were removed from the reported valuation of the case. A brief explanation of what is included in monetary remedies would facilitate “apples to apples” comparisons across fiscal years and administrations.
OFCCP should also provide the number of total number of affected class members remedied and the number of positions or placements contractors have committed to fill under its CAs. This information would give contractors data on the real world consequences of non-compliance. This should serve as a deterrent to future violations assuming the statistics demonstrate effective OFCCP enforcement.
OFCCP should provide data on the number of technical CAs. This data should identify by frequency the most commonly cited technical violations and the most commonly imposed remedies. It may be helpful as well for the agency to graph the trends in technical violations which will provide information demonstrating the shifts in enforcement emphases over several fiscal years. This is particularly important for contractors trying to achieve compliance. There is a good deal of agency discretion in choosing what kinds of technical violations it will target. For example, if outreach is stressed as a national office priority you can expect an uptick in technical violations concerning outreach. By providing this kind of information, contractors can align enforcement priorities with those of the agency.
OFCCP should also provide information concerning litigation outcomes in its cases. The Office of the Solicitor (SOL) handles OFCCP litigation so an argument could be made that this information should be on their website. However, the public that is concerned with OFCCP enforcement would be best served, in my view, if this information is included in the enforcement statistics on the OFCCP website. This will provide a one stop location for obtaining a clear picture of OFCCP enforcement outcomes.
When OFCCP refers a case to SOL with a recommendation for enforcement SOL can resolve the case either through a settlement embodied in a consent decree or litigate the case through to a decision on the merits assuming it accepts the referral. Litigation can resolve discrimination violations or it can resolve issues that do not involve discrimination such as jurisdictional issues or denial by a contractor of access to its facilities. As with CAs, it would be most helpful to separate discrimination cases from cases not involving discrimination.
In general, the same dissection of data recommended above for CAs would be helpful in presenting litigation data. This data should also be presented by fiscal year and data should be available for litigation activity over a period of fiscal years so that trends could be detected in the data.
Most resolutions of compliance require the submission of progress reports. The data in these reports can potentially lead to further enforcement actions or to the opening of a new compliance evaluation at the facility. It would be helpful for the public to know how many progress reports were reviewed in the fiscal year and what percentage resulted in further enforcement activity by OFCCP.
Prior to the current administration, OFCCP would routinely publish information about its annual accomplishments including the number of victims remedied, the dollar amounts recovered, the most frequent types of violations and the like. Often these would appear on the website in press releases. This practice appears to have been discontinued in the present administration.
Initially, I thought this was because eliminating annualized salaries from the monetary figure would invite “apples to oranges” comparisons with the Bush administration which had continued the practice of including annualized salaries which it inherited from the Clinton administration. However, it would not have been difficult for the agency to isolate the actual back pay and interest figures from the prior administration data and provide an “apples to apples” comparison for the public. This fact and the tendency of the agency to lump together multiple years worth of monetary recoveries whenever it talked about its accomplishments suggests that the agency is concerned with how the actual monetary figures will reflect on its effectiveness. It prefers to focus on its regulatory accomplishments, the effectiveness of which will not be clear until long after this administration is over.
Just as good data is critical to a contractor’s compliance effort, good data is critical to the agency’s enforcement efforts. As a federal agency funded by all of our tax dollars, the American people have a right to know how effective OFCCP enforcement is on a fiscal year to fiscal year basis. OFCCP has this data. As a Regional Director I could look into the Executive Information System and see virtually all of the information that I am suggesting should be made public. None of this information compromises the trade secrets of any company because it is aggregate data. Disclosure of this data would also not compromise OFCCP’s ability to effectively enforce the laws. The data can be secured through FOIA requests but that takes time and in some instances money and it reaches a limited audience.
It is difficult to see how the promise of agency transparency is being fulfilled if basic data about enforcement is so hard to find. When I looked up annual report data for OFCCP, after following a number of screens, you get targets for how many compliance evaluations were expected and how many were done as well as some other information regarding goals but not enforcement statistics. Enforcement statistics are the report card for the agency. They make clear what is and is not getting agency enforcement attention. It may also help the agency by making it more accountable to the compliance community and the civil rights community. Including a readily accessible enforcement statistics component to the website will provide feedback to the public as to the effectiveness of OFCCP enforcement initiatives. It will also help the community of consultants and attorneys provide better data to their clients in urging them to take steps to ensure compliance. As it stands now, contractors have to rely on outside sources
who FOIA the information and then write about it to get any sense of how agency enforcement was carried out in any particular fiscal year. OFCCP can do better. OFCCP has often indicated that it wants to upgrade its technical capacity. Here is low hanging fruit from a technology perspective. Make enforcement information, that you already have in your computer systems, available to the public in a friendly, easily understood format, and make it easy to find on the homepage of your website.