Federal contractors shouldn’t be surprised if they receive a request to produce more documentation during a compliance evaluation by the Labor Department’s Office of Federal Contract Compliance Programs.
“Don’t panic just because you have five days to respond to a RIF [request for information]. Take a deep breath and get on the telephone with the CO [compliance officer] conducting the audit,” said David Fortney, co-founder of the management-side law firm Fortney & Scott LLC in Washington.
“Get yourself promptly organized, so that you can devise a plan on how the company intends to respond to the RIF,” he added. Typically, “you don’t know when a RIF is coming,” so answering the RIF in a timely manner will also depend on the contractor’s current staffing levels.
The RIF can “land on your desk” through the mail or “in your email box,” said Jon Geier, a partner with Paul Hastings LLP in Chicago. More often, it will arrive two or three weeks after the contractor has submitted its written affirmative action plans (AAPs), employment data on compensation, job applicants, employees, promotions and terminations, and supporting documentation to the OFCCP. “I am also seeing more seriatim RIFs,” he added.
The agency will likely issue a RIF if its analyses of the employment data reveal statistical indicators of potential discrimination. The lion’s share of RIFs issued by the agency contain over 15 items requesting information, according to Fortney and Geier.
“It’s probably more art than science in replying to the RIF, but there are some legal underpinnings, such as the expansion of the compliance evaluation’s temporal scope and the population being audited, which are important,” Fortney said.
Geier and Fortney presented a colloquy on the dynamics of dealing with a RIF at the May annual summit of the Institute for Workplace Equality, a national nonprofit employer association formerly known as the OFCCP Institute. Fortney, a former acting labor solicitor during the George H.W. Bush administration, serves as one of the institute's co-chairs. Geier sits on the faculty institute.
The attorneys advised government contractors not to stress over a RIF ordering them to produce certain documents within five days to the OFCCP.
A contractor subject to the RIF should assemble a team responsible for obtaining the documents outlined in the RIF, Fortney said. The contractor’s representative overseeing the compliance evaluation should reassure the CO that the company plans on replying to the RIF.
“Tell the CO that you would like a couple of days to review the items listed in the RIF to determine which information is readily available,” he said. For example, the team leader can compose a “short and friendly e-mail” asking for more time to assess the logistics of retrieving the requested documents.
“Think about the RIF from the perspective of the CO,” Fortney said. A senior manager probably instructed the CO to issue the RIF. The person is now held accountable for obtaining the documents listed in the RIF. According to Fortney, most COs will look favorably upon a contractor that instantly makes a phone call or sends an email stressing that the company is working on the RIF and is committed to responding to the request.
The contractor’s representative may have to tell the CO that the company “will likely be responding seriatim,” Geier said. That is, “we are not going to wait until everything is done before we send it to you” he said. “You get no do-overs with the OFCCP, so you can’t send in information to the agency until you are highly confident that it’s complete and accurate.” Fortney agreed: “Turn nothing over until you have fully drilled it down and understand it.”
Geier stressed that he wasn’t “suggesting that you delay in getting things” to the agency. “The contractor has to ensure the documents and information submitted are complete and accurate. Sending in “corrected data” may increase the employer’s chance of receiving a recordkeeping violation, he added.
Geier advised contractors to complete the RIF and establish open communication with the CO. In addition, the employer shouldn’t promise to submit a document or information by a specific date, unless it’s “pretty confident” it can meet the deadline, he said.
In replying to a request for workplace policies, the contractor should understand “this is not federal court litigation in which there is a discovery request for any and all documents, for example, that have the word ‘performance management,’” Geier said. Contractors should gather, review, and submit policy documents which it deems appropriate and relevant to the request.
Fortney urged contractors to conduct a basic inventory of the documents being requested and create a triage system of the requested documents with four categories: “yes, no, easily retrievable and not easily retrievable.”
At the end of the five-day period, the contractor should have “an internal project plan, focusing on delivery dates, and inform the CO on the number of days it will take to respond to each item listed in the RIF,” Fortney said. Certain requested items may take 15 days to prepare and submit, while others could take 30 days. “It’s hard to get the agency to agree on a 60-day time frame,” he added.
Under the regulations, there are no time limits on submitting data under a RIF, Geier said. “Legally, that’s correct, but there is the relationship with the CO to consider,” Fortney added. “Don’t get me wrong, but I am not arguing for a delay for the purpose of a delay,” Geier replied. “If it takes me 75 days to get the last item in, then I am going to take 75 days,” he added.
There are no legal parameters on the number of RIFs the OFCCP can issue during a compliance evaluation, “which is why I think a positive relationship with the agency is important,” Fortney said.
A compliance evaluation covers a two-year period. The contractor may deem data requests in the RIF, especially those addressing employee-level compensation and job groups, as too broad because they seek information that isn’t within the timeframe subject to the audit.
Contractors have to be strategic about responding to such data requests, Fortney and Geier said. A request seeking information from a year that falls outside of an evaluation’s time period may represent a significant expansion of the temporal scope of the audit and potential liability by increasing the population under audit, Fortney said.
In some cases, the agency may have a strong justification for seeking data through a RIF that goes beyond the timeframe of the compliance evaluation, Fortney said. The contractor may decide to respond to a prior-year data request by submitting a partial or limited response that contains an explanation as to why the contractor deems the response appropriate for the request.
Contractors, however, should avoid situations in which the agency considers a refusal to provide documents as a denial of access, which can lead to the agency filing an administrative lawsuit against the company.
Fortney reminded attendees that once a contractor has ceded jurisdiction for the agency to expand the evaluation, then it most likely has waived its objections to other data requests issued in the compliance evaluation.
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