OFCCP Ombuds Stergio Discussed Using His Office to Assist with OFCCP Conflict
Federal contractors may contact the OFCCP’s Ombuds office if they feel stuck, frustrated, or unclear about where things are headed and unsure of whom to talk to when encountering concerns with the OFCCP. Marcus Stergio is currently the Ombuds for the OFCCP with over three years of experience in that role at the agency. He spoke to the audience about his role, its history, and the trend analysis that he assembled for his most recent annual report.
What is an Ombuds?
Marcus serves as an independent, impartial, and confidential resource available to all OFCCP employees and stakeholders nationwide, including federal contractors and subcontractors, contractor representatives, industry groups, law firms, worker rights organizations, and current and potential employees of federal contractors and subcontractors.
As an external ombuds, he serves as an informal facilitator of disputes between the agency and stakeholders, observes and analyzes trends, and promotes broader conflict competence among OFCCP and the stakeholder community. “I’m facilitating between the agency and any type of external stakeholders who have an interest in the work of OFCCP,” he said.
Background on the Office
OFCCP developed the Ombuds Office in 2019 due to two impetuses:
As a result of these two impetuses, OFCCP wanted to enhance communication with stakeholders and increase transparency, Marcus explained. “I came in to create this external Ombuds Office that could do just that, give people a platform to kind of reach out to OFCCP and raise communication or transparency or really any other issues when you might not otherwise do that out of a fear of what happens if you do reach out with complaints about the agency.” In addition, “OFCCP staff are able to contact me if they’ve identified ways I can help them in their coordination with an external stakeholder,” he noted.
Ombuds Standards of Practice
Marcus explained that he follows four standards of practice from the International Ombudsman Association. These are confidentiality, impartiality, independence, and informality.
Confidentiality. While some people think of ombuds as largely mediators “very seldom am I actually mediating,” Marcus clarified. “Sometimes people just want an individual private conversation.” He also explained that he can share, or not share, all or part of a conversation with specified parties as requested.
Impartiality. Even though Marcus is an OFCCP employee, he is “a neutral third party who doesn’t take sides.” He elaborated: “I don’t direct outcomes in favor of external stakeholders or OFCCP because it’s not in my interest to do so. If I were to do so, people wouldn’t trust me and then I wouldn’t have anybody contacting me and then I probably wouldn’t have a job.
Independence. Marcus’ role is not part of any other division in OFCCP. “I don’t participate as part of any other work teams or divisions or offices within OFCCP except for the Ombuds Office. So, I don’t align myself more closely with particular people or divisions of OFCCP than I do others, or that I do with external stakeholders. And that allows me to maintain that impartiality and also confidentiality,” he explained.
Informality. “I don’t conduct investigations,” Marcus noted. “If you reach out and say this person I feel like is doing things all wrong according to the regulations, I can’t initiate an investigation and then issue a finding where I would say, yep, you’re right, OFCCP, you need to do this differently. I don’t have that authority, and, quite frankly, I don’t want that authority because that would jeopardize my neutrality and also make it complicated for me to maintain confidentiality. […] I can’t replace the person at OFCCP you’re not working well with, but I can step in and informally help you by facilitating a conversation with them.
When Marcus invited questions about these standards, DE Executive Director Candee Chambers noted her past experience working with him. “I have learned he can be trusted,” she said. “I do firmly believe that he’s truly kept every conversation confidential.”
Resolution Techniques
Marcus tracks the types of referrals he receives and looks for trends. Looking at a pie chart based on fiscal year (“FY”) 2022 data regarding the conflict resolution processes, he first noted that about 65 percent of everything he did was working with people one-on-one, i.e., individual consultation. That involves “you reaching out, telling me what’s going on, me providing confidentiality and just being a sounding board, helping you figure out what is best to do in your situation,” he told the audience.
The next largest piece of the pie was “shuttle diplomacy.” He described that as “going back and forth between two parties.” “Lots of times people aren’t ready to be in the same room, whether it’s virtual or in-person, right away,” he observed. “I try not to get people in the same room for let’s say a mediation or facilitated dialogue right away,” he reported. “More often we’re working through shuttle diplomacy where I’m having private calls and conversations with people, relaying messages back and forth.”
“Then […] about 10 percent of the time it does get to mediation because people have made some progress through shuttle diplomacy and maybe want to continue working and see if they can close the gap and come up with something, whether verbally or in writing that works for them.”
Primary & Secondary Issue Types
Again, based on FY 2022 data, Marcus identified several primary issues which are those mentioned when stakeholders first reach out to him. The most cited ones are transparency, extension requests, scope of review, investigation concerns, jurisdiction disputes, negotiation impasse, disputed determination, communication, conduct, personnel, policy and/or procedural concerns, “other,” and need for guidance.
Secondary issues are those underlying the primary issues. Those include communication, transparency, consistency, reasonable time frames, reactive devaluation, efficiency, and collaboration. “Reactive devaluation is a form of bias that basically comes about if we had a tough time working with someone in the past and we have to work with them again, we sometimes subconsciously just devalue the things they say or do,” he explained. “Not because we actually disagree with them or don’t think they’re good ideas or don’t like that person’s processes, [rather], it’s because they came from somebody whom we have negative perceptions of.” To address this situation, “we figure out what it is that could change that makes it easier to work with them.”
Inquiry/Referral Sources
Looking at both FY 2022 and FY 2023 (so far) data, Marcus identified the sources of referrals/inquiries to the office. The most common source is from contractor representatives and complainants, followed by contractors and then OFCCP. “You might be surprised [to see] such a high number [of complainants], he said. “I think this is probably because there are times when a complainant working with OFCCP disagrees with the decision or outcome and [wants to know what is] the next step in the process.” “And the district office lots of times will say there really is no next step,” he continued. “I think they lots of times will give them my information so they can reach out to me, and we can have conversations about what it is they found problematic and what they disagree with. And again, that’s data I can track and either provide back to the district office or more generally inform OFCCP leadership these are some of the issues complainants are experiencing when they’re going through situations with OFCCP.”
“I think initially people thought of me as only working with contractors and I had to work hard to dispel that notion [and clarify that I work] with all angles of the OFCCP community including from within,” he stated.
Although the numbers for FY 2023 so far appear to be low, “I’ve also noticed through my first three years prior to this one, quarter three for whatever reason has been the busiest,” he reported.
Later in his presentation, Candee asked Marcus whether he sensed contractors might hesitate to contact him out of fear that OFCCP might retaliate against them. “I actually wonder if that’s why the number of referrals I get from contractors is lower than contractor representatives who might not share the name of the contractor, or with complainants who feel [that] there’s no harm in reaching out [because their identity is already known to the agency.]”
While he acknowledged that the fear is understandable, Marcus is not aware of anyone who has faced that after contacting the Ombuds Service. Occasionally, individual stakeholders will ask him not to share any part of their conversations with OFCCP. “I think [that] sometimes makes people a bit more comfortable with eventually saying, yeah, reach out to the district office and see where that leads us,” he noted. Also, if a contractor believes a compliance officer is treating them differently after finding out they reached out to [the Ombuds], “then they can go to the district director with those concerns.” “If you don’t get the answer you like from the district director, there’s a regional director above them,” he continued. “You can always loop me back into that because that’s a concern I’d take really seriously.”
Trend Analysis via Annual Reports
At the end of every FY, Marcus puts together an annual report to examine trends. The goal of these annual reports is “for [OFCCP] senior leadership to have the awareness that it needs in order to make changes that address your concerns and the issues you’re experiencing,” he told the audience. “But again, confidentially, without me ever sharing your names, just issues data.”
He shared a few charts to illustrate these trends. First, he shared the following chart:
Taking into account that the number of issues has increased from FY 2020 through FY 2023, Marcus said he wanted to dig deeper because it might not be fair to just conclude that conflicts with the agency have increased. Thus, he moved on to the following chart:
The data in the above chart “is the sum of primary and secondary issues” that he identified earlier. The red line, representing facilitative resolution techniques, constitutes “everything except individual consultation” (i.e., it covers shuttle diplomacy and mediated facilitated dialogue). The blue line represents the individuals with whom he has worked. Marcus acknowledged that, as he gained more experience in his role, he is “better able to identify issues.”
Next, he shared the following chart illustrating trends in secondary issues:
Of particular note were the increases in communication and efficiency as secondary issues. He pointed out that in FY 2021, presidential administrations changed. “New senior leadership team comes in and it takes time for people to identify what was going on at the agency [and what direction they are going to take various policy matters],” he pointed out. “What I was hearing a lot of shortly after the change of administration was just anxiety about what’s going on.” In FY 2022, [t]here were [new and revised] directives issued by the agency. There were more speaking engagements where maybe specific references to initiatives and strategies and directions moving forward.” He added, “I think maybe once the new directives were issued and people felt less anxious because they knew what the priorities were going to be.”
Working with OFCCP Personnel
During the Q&A session, Candee asked Marcus how he has been received by the agency. “I think early on people within the agency probably viewed me as this person who is just this complaint system who is just going to field complaints from contractors and they were all going to be negative about OFCCP,” he replied. “And that I was going to tell their managers, then they were going to be in trouble with their managers. And that was going to affect their performance,” he continued. “To address that, I tried to really work hard to explain that, no, I’m available to help you with the issues you’re identifying too.”
Candee also asked about his approach when he thinks the parties, particularly the agency, should do things differently. “I think in order to be truly impartial, you have to be listening to what the person is saying as opposed to forming your own judgments about them or what they’re saying,” he replied. “Sometimes, however, as I get more and more information, it does raise questions for me that I will pose [in a] nonjudgmental and as neutral of a way as I possibly can, without suggesting what I think they should do differently. But I’ll just say have you or the contractor considered this? And if so, what happened? If you haven’t, then why didn’t you? I’m not the expert, you guys are. But what would happen if we tried this?” He characterized that as “taking an exploratory approach and asking open-ended questions, putting potential options on the table without suggesting people should actually do what I’m proposing.” He added, “I think that feels less threatening to people if I were to say, look, I looked up in the regulations and what you did is totally wrong. I think that’s when people get defensive and do see me as someone who’s partial as opposed to what I’m presenting myself.”
Measuring Success
Candee also asked how he measures success. Due to the nature of his work, he is not always aware of the ultimate outcome of his efforts, Marcus said. However, there is an Ombuds Service Evaluation Form on the office’s webpage that allows stakeholders to provide feedback.
Aside from that, he also gets a sense of accomplishment from when the agency puts out information, such as FAQs, “that it might not have known to put out before because it didn’t understand how much of a knowledge gap there was.” He continued, “I think that highlights the value of people not just sitting there at their desk feeling frustrated […] but sharing them with somebody who can present the data confidentially.”
Contacting the Ombuds Service
Stakeholders may contact the Ombuds Service by calling (202) 693-1174 or sending an email to Stergio.Marcus@dol.gov.