OFCCP created its Ombud Service, outlined in Directive 2018-09, to increase transparency and communication between the OFCCP and Agency stakeholders. The Agency defines stakeholders to include federal contractors and subcontractors, contractor representatives, industry groups, law firms – and, interestingly, OFCCP employees with issues concerning, among others, contractors, and their representatives.
The Service has been in operation for three years , since 2020, enough time to review how it is doing.
The Ombuds Service is informal – it does not make binding decisions or impose penalties against stakeholders. OFCCP created it to ensure fair processes, effective communication, and collaboration between the OFCCP and its stakeholders. To do this, the Service offers individual consultations, conflict coaching, mediation, facilitation, shuttle diplomacy, and conflict resolution skills training (see the Ombuds Service Protocol.) Most issues are addressed 1-on-1. The Service is a form of Alternate Dispute Resolution (ADR), in which a third-party, neutral facilitator aids individuals review a dispute, clear misunderstandings, find areas of agreement and, where possible, reach a voluntary solution.
OFCCP makes it clear that stakeholders’ key Agency contacts remain personnel in the regional and district offices. The Ombuds Service is for contractors or their representatives when perceived issues persist after reach-out to local resources.
OFCCP recognizes that an ADR-based process must be independent – it cannot represent any one individual or entity. It must be neutral – an ADR facilitator must not have a stake in the outcome of compliance evaluations and must not take sides. To ensure independence and neutrality, OFCCP designed the Service to work outside of management channels, reporting directly to senior leadership. Good news is that three years into operation, contractor consensus is that the Service is independent and neutral.
A successful ADR program must provide confidentiality. Those using the Service must feel that the information that they provide the Ombuds can remain just between them. There are, of course, limits to confidentiality. Law requires the Ombuds to report matters such as fraud, waste, abuse, criminal activity, or threats of imminent physical harm. No such issue, however, has arisen during three years of program operation.
Those who use the Service can submit issues anonymously. Keep in mind, however, that lack of detail can limit the ability of the Ombuds to fully address the issues you raise.
The Ombuds Service has handled 497 referrals in three years. One fifth are requests for guidance, commonly concerning regulatory requirements and contractors’ reporting obligations. The Ombud refers these inquiries to resources such as the OFCCP Help Desk, FAQs, Directives, and the Federal Contract Compliance Manual (FCCM). When an individual requests anonymity, the Ombuds may vet the issues raised with OFCCP resources for the caller.
The Service has addressed a wide variety of other issues, including apparent impasses in negotiations, concerns about the scope or direction of audits, and conduct (commonly occurring when the caller describe others as difficult to work with).
Discussions with the Ombuds can reveal unstated, below-the-surface “secondary” issues. Over three years, more than a third relate to transparency, consistency, and effectiveness. Conflict drivers identified include delays in Agency communication (often followed by data requests with quick turnaround times), Agency refusal to discuss an audit issue prior to conciliation, and audits that meander from issue to issue.
Before contractors conclude that these secondary metrics establish that Agency practices are opaque or unhelpful, the Service’s 2020 Annual Report notes they are common “to disputes between people generally as opposed to a phenomenon unique to OFCCP”. Also, over three years, 15% of those using the Service have been OFCCP personnel, often seeking help on how to better work with contractors or contractor representatives with whom communications have proven difficult. The conclusion to draw would seem to be that people work most efficiently when collaboration and transparency work both ways.
OFCCP first established an Ombuds Program at the regional level in the late 1990s but, despite contractors’ support, discontinued the program in 2005. Three years into the operation of the new, Agency-wide Ombuds Service, many affirmative action practitioners are glad to see the transparency and communication that the reinstated program makes possible.
