Enterprise-Wide Enterprise-Wide EnforcementEnforcement

Sandra Scott Zeigler for the Sandra Scott Zeigler for the AZILGAZILG

Why Enterprise-Wide?Why Enterprise-Wide? ““Enterprise-wide investigations, based on Enterprise-wide investigations, based on

patterns of violations and identification of patterns of violations and identification of egregious violators, will enable the OFCCP egregious violators, will enable the OFCCP to remedy deficiencies across an entire to remedy deficiencies across an entire corporate structure, rather than one corporate structure, rather than one facility at a time. Coupled with a renewed facility at a time. Coupled with a renewed collaborative enforcement approach with collaborative enforcement approach with the Office of the Solicitor (SOL) and other the Office of the Solicitor (SOL) and other Departmental agencies, this enforcement Departmental agencies, this enforcement strategy will increase the rate of strategy will increase the rate of compliance for contractors who engage in compliance for contractors who engage in egregious violations.” OFCCP 2013 Budget egregious violations.” OFCCP 2013 Budget Justification. Justification.

Why Enterprise-Wide?Why Enterprise-Wide?

Clears and closes a bunch of old Clears and closes a bunch of old cases all at once.cases all at once.

Combines the remedies and victim Combines the remedies and victim numbers to create a more numbers to create a more impressive-sounding result.impressive-sounding result.

Allows the weaker results at some Allows the weaker results at some facilities to be resolved because they facilities to be resolved because they get included in the enterprise-wide get included in the enterprise-wide remedy.remedy.

Why Enterprise-wide?Why Enterprise-wide?

Puts in play the opportunity to get Puts in play the opportunity to get results beyond what would have results beyond what would have been available in litigation.been available in litigation.

Much more affordable. Much more affordable. From the contractor’s side, it may cut From the contractor’s side, it may cut

off further investigation into as yet off further investigation into as yet undetected vulnerabilities.undetected vulnerabilities.

Types of CompaniesTypes of Companies

High applicant rates and high High applicant rates and high turnover ratesturnover rates

Lots of facilities Lots of facilities Company-wide policies or proceduresCompany-wide policies or procedures Financially stableFinancially stable Large Government ContractorsLarge Government Contractors

Types of IssuesTypes of Issues

Current IssuesCurrent Issues Lower skilled jobs with the same title Lower skilled jobs with the same title

and similar qualifications across multiple and similar qualifications across multiple facilities affecting same classes of facilities affecting same classes of workersworkers

Testing casesTesting cases Wish List IssuesWish List Issues

CompensationCompensation Disability/VetsDisability/Vets

Investigative ProcessInvestigative Process

Cases usually investigated Cases usually investigated separatelyseparately

Multi-establishment teleconferences Multi-establishment teleconferences may be held to share information may be held to share information about reviews of the company’s about reviews of the company’s facilities in other Regionsfacilities in other Regions

May not become an Enterprise-Wide May not become an Enterprise-Wide case until negotiation stage or case until negotiation stage or beyondbeyond

Remedies Remedies

Injunctive relief (the contractor Injunctive relief (the contractor agrees to do something) which may agrees to do something) which may include relief that would not be include relief that would not be otherwise available in litigation, and otherwise available in litigation, and

monetary relief (the contractor pays monetary relief (the contractor pays something)something)

RemediesRemedies

Injunctive and Monetary relief may Injunctive and Monetary relief may be negotiated separatelybe negotiated separately

There is some relationship between There is some relationship between the two but it is neither consistent the two but it is neither consistent nor clear (you may or may not be nor clear (you may or may not be asked for less money if you are more asked for less money if you are more cooperative on the “do something” cooperative on the “do something” remedyremedy

Injunctive ReliefInjunctive Relief

Outside experts may be used if Outside experts may be used if internal reviews that would not internal reviews that would not otherwise be required are agreed on otherwise be required are agreed on as part of the conciliation, for as part of the conciliation, for example, reviews at facilities other example, reviews at facilities other than those scheduledthan those scheduled

Outside experts may be used on both Outside experts may be used on both sides to arrive at the monetary figuresides to arrive at the monetary figure

Injunctive ReliefInjunctive Relief

May include activities that the May include activities that the contractor has already implemented contractor has already implemented or was planning to implement or was planning to implement anywayanyway

RemediesRemedies

Generally, a single monetary remedy Generally, a single monetary remedy will be arrived at and the agency will will be arrived at and the agency will decide how to divide it across the decide how to divide it across the facilities included in the agreementfacilities included in the agreement

Usually, the language is negotiated Usually, the language is negotiated as if it were basically one document, as if it were basically one document, and this template is used in separate and this template is used in separate conciliation agreements for each conciliation agreements for each facility.facility.

RemediesRemedies

Cases that are already in Cases that are already in enforcement use the negotiated enforcement use the negotiated language in a consent decree, cases language in a consent decree, cases that have not been referred for that have not been referred for enforcement use it in a conciliation enforcement use it in a conciliation agreementagreement

Inter-Regional IssuesInter-Regional Issues

Reconciling liability calculationsReconciling liability calculations Reconciling remedy calculationsReconciling remedy calculations Dealing with prior verbal agreements Dealing with prior verbal agreements

on some terms of settlementon some terms of settlement Apportionment of the remedy across Apportionment of the remedy across

regional boundariesregional boundaries Impact on cases by the same company Impact on cases by the same company

that are not ready for closurethat are not ready for closure

Current Trends That Might Fuel Current Trends That Might Fuel Enterprise-Wide EnforcementEnterprise-Wide Enforcement

Elimination of caps on the number of Elimination of caps on the number of open reviews increases the likelihood open reviews increases the likelihood of having a number of open reviews of having a number of open reviews at similar facilities across the country at similar facilities across the country at a single companyat a single company

Current TrendsCurrent Trends

Emphasis on collecting and reviewing Emphasis on collecting and reviewing corporate-wide policies looking for corporate-wide policies looking for subjects for “injunctive relief”subjects for “injunctive relief” Family and Medical Leave PoliciesFamily and Medical Leave Policies Reasonable Accommodation PoliciesReasonable Accommodation Policies Compensation PoliciesCompensation Policies Outreach and Training PoliciesOutreach and Training Policies Document Creation and Retention Document Creation and Retention

PoliciesPolicies Arrest and Conviction Record PoliciesArrest and Conviction Record Policies

Current TrendsCurrent Trends

More time and more data may be More time and more data may be required if the agency moves to required if the agency moves to designating cases as potentially designating cases as potentially “Enterprise-Wide” earlier in the “Enterprise-Wide” earlier in the investigative processinvestigative process

The Regions may have less authority The Regions may have less authority than usual in negotiating the closure of than usual in negotiating the closure of these cases and may have to check in these cases and may have to check in with National OFCCP and National SOL with National OFCCP and National SOL throughout the negotiation process.throughout the negotiation process.

FAAP DirectiveFAAP Directive

Issued December 2012Issued December 2012 Attempts to bring FAAP reviews Attempts to bring FAAP reviews

closer to their intended purposecloser to their intended purpose Previous FAAPs were sometimes not Previous FAAPs were sometimes not

related to how the business unit related to how the business unit actually functioned and were not actually functioned and were not always that different from an always that different from an establishment review.establishment review.

FAAP DirectiveFAAP Directive

Multi-Establishment corporations Multi-Establishment corporations may request OFCCP approval for may request OFCCP approval for Functional rather than establishment Functional rather than establishment AAPsAAPs

Functional unit may cross Regional Functional unit may cross Regional boundariesboundaries

Intended to align reviews with how Intended to align reviews with how the company actually operatesthe company actually operates

FAAP RequirementsFAAP Requirements

Currently exist and operate Currently exist and operate autonomously.autonomously.

Include at least 50 employees.Include at least 50 employees. Have its own managing official.Have its own managing official. Have the ability to track and Have the ability to track and

maintain its own personnel activity.maintain its own personnel activity.

Basic FAAP PrinciplesBasic FAAP Principles

Written approval requiredWritten approval required No automatic renewalsNo automatic renewals CA and EEO history will be factored inCA and EEO history will be factored in Can use a mix of FAAPs and Can use a mix of FAAPs and

establishment AAPsestablishment AAPs FAAPs approved for three years FAAPs approved for three years

rather than fiverather than five Minimum of two evaluations during Minimum of two evaluations during

the term to qualify for renewalthe term to qualify for renewal

Questions????Questions????