2. OFCCP Back-Pay Collections Will Continue to Plummet
As we have predicted for several years now, OFCCP back pay collections will continue to fall, precipitously. There are many intersecting reasons for this surprising result, but this CSAL adds yet another reason to force a decline in OFCCP enforcement statistics and backpay collections.
You need wood to make a fire burn. If there is only a small amount of wood, there will not be a very big fire. Many of OFCCP’s audit targets OFCCP identified in its new CSAL will simply be too small to make for meaningful statistical analyses (or what OFCCP calls “systemic analyses”) …the tool with which OFCCP usually hunts unlawful discrimination in hiring to ring up its backpay collection numbers.
And OFCCP has thus far failed to find “widespread” compensation discrimination and its backpay collections continue to therefore be very modest in that category (one-in-a-million allegations of discrimination per employee whose pay OFCCP has investigated). And, as an aside, OFCCP’s backpay collections for alleged unlawful pay discrimination will continue to shrink as OFCCP has (appropriately) moved away from some of its previous (inappropriate) analyses which had forced many “false positive” findings.
The Trump OFCCP reported no discrimination violations and only two technical affirmative action violations from its first batch of 500 Drive-Thru Focused Review audits (almost half of OFCCP’s audit production for the year). It did not take Biden OFCCP Director Jenny Yang many months on the job at OFCCP to decide the Focused Review was not an effective audit tool and to retract and retire it from OFCCP’s arsenal of audit tools.
The first batch of Biden Administration Drive-Thru audits, fueled by the return of the previously disgraced and retired OFCCP “Compliance Check” audit tool to be used in conjunction with construction audits, is following in the footsteps of the Focused Review audit tool. The first 100+ OFCCP Compliance Checks have produced no discrimination violations (they are not geared to do so as a records-check-only tool), no affirmative action violations, no Conciliation Agreements, and no Consent Decrees.
Ignoring Lessons Learned From OFCCP’s Past: What the Clinton, Bush and Obama OFCCP administrations learned was that OFCCP must do the hard work of full Compliance Reviews, with no short-cuts or truncated Drive-Thru mini-reviews by whatever name (Compliance Check/Focused Review)—to properly investigate and remedy unlawful employment discrimination.
And, what the Bush, Obama, and Trump administrations learned, and translated into effective operating audit policy and practice, is that OFCCP must raise its sights and hunt for “Big Game.” Bush OFCCP Director Charles James used to often advise his OFCCP Compliance Officers to “forget about the onesies and twosies,” or even where we suspect there might be as many as ten individual instances of unlawful discrimination. Leave that to the EEOC and to the Plaintiffs’ lawyers. “We want the Big Game, the employment systems, the companies where we can investigate high number-count employee establishments and can conduct systemic analyses,” Director James used to instruct.