In keeping with their promise of “full-scale, aggressive enforcement” efforts, the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has implemented a new Active Case Enforcement (ACE) directive that strengthens their compliance evaluation process.  The most significant change is that every 25th audit now will include an on-site review, even in the absence of indicators of non-compliance or discrimination.  Additionally, every compliance review will undergo a full desk audit.  This directive is effective for all compliance evaluations started on or after 1/1/2011.

Federal contractors should be prepared for longer, more in-depth desk audits focusing on all aspects of compliance.  Outreach efforts towards veterans and individuals with disabilities, job postings requirements, compensation discrimination and the accessibility of online application systems are areas of increasing importance for OFCCP.  The directive also specifies that at the beginning of a compliance review, the OFCCP will contact the Equal Employment Opportunity Commission (EEOC) as well as state and local fair employment agencies to “determine the nature, status and outcome of any complaints that have been filed against the contractor at the establishment under review.”

OFCCP is in the process of expanding its focus “to include findings of non-compliance with the laws administered by the Department of Labor’s Veterans’ Employment & Training Services (VETS), Occupational Safety and Health Administration (OSHA) and Wage and Hour Division (WHD).”  ACE also calls for each compliance officer “to review the contractor’s compliance history for the past three years” using the OFCCP’s internal database to see if there are any patterns of non-compliance.

All on-site audits under ACE will include a review of the contractor’s compliance with Executive Order 13496.  Federal contractors and subcontractors should review their contracts and subcontracts to ascertain whether they fall under those regulations.

The new ACE procedures replace the formerly used Active Case Management (ACM) system which governed compliance reviews from 2003 – 2010.  ACM limited OFCCP’s focus to cases of systemic discrimination involving 10 or more affected employees.  It only called for full desk audits every 25th review and on-site visits every 50th.  The ACE directive states that “ACM proved to be of limited utility in that it did not allow OFCCP to effectively use all of its investigative tools.”

Amid all of these changes to the compliance review process, a few things remain unchanged.  The Federal Contractor Scheduling System (FCSS) will still be used to select which establishments will be reviewed and the order of the audits.  At the end of the compliance review, contractors will still have the same 24 month exception period in which that establishment will not be audited again.

The ACE directive can be viewed on OFCCP’s website:  http://www.dol.gov/ofccp/regs/compliance/directives/dir295.htm Frequently asked questions are available at:  http://www.dol.gov/ofccp/regs/compliance/faqs/ACE_faqs.htm