Cozen O’Connor: Affirmative Action, OFCCP, and Related Compliance

Most employers that contract with the federal government must comply with Executive Order 11246, which requires affirmative action to recruit, hire, and promote women and minorities when those groups are "underutilized" in the employer's work force. This requirement is generally enforced by various means, including having a written affirmative action plan (AAP). Many states and cities have similar requirements for businesses that contract with those entities. Further, the Office of Federal Contract Compliance Programs (OFCCP) has in recent years intensified its enforcement efforts, requiring federal contractors to show that they are not discriminating against employees or job applicants and are engaging in good-faith efforts to ensure equal employment opportunities for women, minorities, individuals with disabilities, and veterans. And as employers continue to study the horizon in light of the June 2023 Supreme Court rulings in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fairs Admissions, Inc. v. University of North Carolina — and the backlash by some against corporate diversity, equity, and inclusion (DEI) initiatives — savvy counsel is more crucial than ever. Cozen O’Connor has assembled a team of experienced lawyers to provide the full spectrum of assistance employers need in this space.

Determining whether your business and your specific contract is covered by federal, state, or local laws is the first step in assessing your legal obligations. If it is determined that your business is a covered contractor, the next step is to determine what is required to comply with the requirements imposed on contractors, which is usually dependent on the size of the contractor and the amount of the contract. For larger contractors that meet the dollar threshold, a carefully drafted AAP is essential to mitigating risk, and our Affirmative Action, OFCCP, and Related Compliance team stands ready to assist, whether by helping to develop an AAP from scratch, reviewing an existing AAP to ensure optimal compliance, and/or recommending steps the company should take throughout the plan year to ensure compliance. When developing an AAP, we analyze client data for reliability and consistency. For federal contractors and non-federal contractors alike, we advise on implementing lawful diversity initiatives and voluntary AAPs, applicant tracking and recordkeeping, set-asides, and vendor and franchisee preference programs; counsel on affirmative action coverage issues; and conduct preventive analyses during downsizing. We also help clients prepare effective and compliant in‑house AAP and DEI training programs.

Our team also defends clients against the imposition of citations and allegations of discrimination in connection with audits by the OFCCP and/or state and local affirmative action agencies, as well as in matters brought on the OFCCP’s behalf by the Solicitor’s office of the U.S. Department of Labor. Our services on this front include the following:

Internal Data Analysis: If a client receives notice of a government audit, our first move is to vet the company’s internal data to make sure it will meet the government’s requirements and avoid any presumption of wrong-doing.
Desk Audit Submissions: We take a thoughtful approach to desk audit submissions with the aim of minimizing follow-up information requests from the OFCCP.
OFCCP Information Requests: We help clients respond strategically to potentially burdensome information requests.
OFCCP On-Site Audits: When a client has received notice of an on-site evaluation, we thoroughly prepare managers in advance of their interviews and then work with the OFCCP's compliance officers during the audit to ensure that the client's employment practices are conveyed accurately and clearly.

We also advise and provide training for employers on other issues arising from OFCCP monitoring, including employment tests, compensation analyses, government contractor and subcontractor status, and single employer issues.

Finally, our team brings to the table experience in employment law areas unique to government contractors, including the Service Contract Act, Davis-Bacon Act, Uniformed Services Employment and Reemployment Rights Act, and False Claims Act.

In all matters, we proceed in the spirit of partnership with our clients, getting to know both your business and your people so we can help you put your best foot forward in an effective and efficient manner.