The OFCCP’s New Enforcement Protocol—Active Case Enforcement (ACE)

The Office of Federal Contract Compliance Programs (OFCCP) has rescinded Active Case Management (ACM), and in its place is Active Case Enforcement (ACE). ACE was signed into order in December 2010, with an effective date of January 1, 2011.All compliance evaluations scheduled on or after that date will be processed using ACE procedures. This enforcement protocol will enable the OFCCP to employ all of its compliance evaluation methodologies including the compliance review, compliance check, focused review, and offsite review of records. Service and supply contractors may be evaluated under any one, or a combination, of these methods.

 

There are several major differences between ACE and ACM:

1.      Under ACM, only the compliance review method was used. Under ACE, the OFCCP will use all of the compliance evaluation investigative methodologies specified in the regulations. This may mean the return of the compliance check—a review of contractor records that can occur with less notice than the standard 30 days provided for a compliance review.

 

2.      ACM procedures focused on identifying cases of systemic discrimination where there were ten or more affected class members. ACE does not have a minimum affected class member constraint. The OFCCP may pursue any areas of significant adverse impact, regardless of the size of the group.

 

3.      Under ACM, a full desk audit was conducted only when there were indicators of discrimination or in every 25^th review. Under ACE procedures, all compliance evaluations will begin with a full desk audit. A full desk audit is a comprehensive analysis of all of a contractor’s written affirmative action plans (AAPs) and supporting documentation. These analyses include impact ratio analysis, compensation analysis, and acceptability of each AAP.

 

4.      A compliance check may be expanded to a full compliance review where indicators are identified at the desk audit. If indicators are not identified at the desk audit, OFCCP has the discretion to close the evaluation.

 

5.      Besides statistical and anecdotal evidence of discrimination, indicators of potential discrimination and violation also include patterns of individual or systemic discrimination, patterns of major technical violations such as recordkeeping deficiencies or failure to maintain an AAP, and noncompliance with other laws that may relate to violations of the laws enforced by the OFCCP. A local District Director indicated the OFCCP is sending letters of inquiry to other “fair employment practice” agencies to verify jobs have been posted with the appropriate employment service, and to get a larger picture of Equal Opportunity (EO) compliance at the location. During recent reviews, auditors had asked for proof of receipt of the posted positions, which is a higher standard than the proof of submission required previously.

 

6.      An onsite review will not be limited to the nature or scope of the indicators that triggered the review. It will be comprehensive in nature regardless of whether it was prompted by specific indicators of discrimination. Therefore, if the OFCCP determines an onsite review is necessary for adverse impact issues, they may also investigate compensation or applicant tracking when onsite.

ACE will not affect pre-award compliance evaluations. Contracting officials will still be required to request Equal Employment Opportunity (EEO) clearance of prospective federal contractors receiving a non-construction contract award of $10 million or more. The Federal Contractor Scheduling System will still be used to select contractor establishments for a compliance evaluation under ACE, and the 24 month grace period still applies for locations that receive a closure letter.

 

The Director of the OFCCP reserves the right to periodically change the subject for focused reviews, which will be communicated on the OFCCP website each year. The initial focus area will be compliance with outreach efforts for individuals with disabilities and covered Veterans. For more information on these changes, contact your Berkshire representative or visit the FAQs here.