Tuesday, August 4, 2020: OFCCP Updates on Conciliation, Mediation, and the Ombuds Service
OFCCP hosted a webinar spotlighting a few of its programs aimed at resolving disputes that arise during the course of a Compliance Evaluation. Director Leen kicked off the call by touting the Agency has a 99% effective and successful conciliation record.
The OFCCP has a procedural duty to conciliate when it believes it has found “deficiencies” during a Compliance Evaluation. (See 41 CFR §60-1.20(b), §60-300.60(b), and §60-741.60(b)). OFCCP Director of Enforcement, Bob LaJeunesse, outlined the Agency’s conciliation process and indicated there are no significant revisions or changes, only that the Agency is streamlining its efforts in the hopes of keeping down the number of “aged” audits. OFCCP’s definition of “aged” varies over time, but OFCCP is currently still closing many audits it began five or more years ago.
Mr. LaJeunesse, newly installed as the Director Enforcement after shedding his “Acting” job title, stated that OFCCP is committed to make the process work, including that during the conciliation process, it will share information at least seven days in advance of a meeting. If for some reason, that is not possible, OFCCP will reschedule the meeting. Ideally, both parties should share questions and discussion topics in advance to make the meeting as efficient and productive as possible.
Factors considered during a settlement include:
- the size & scope of the violations,
- statistical considerations (i.e., scale, complexity, non-statistical evidence, aggregation difficulties),
- equitable & practical considerations (i.e., contractors’ willingness to commit, mitigation complexities, enforcement priorities, age of the case, past-violations, amount of prior comparable cases),
- evaluation of claims and defenses (i.e., jurisdictional/legal issues, the likelihood of an appeal, overlap with EEOC or another private case)
If the parties cannot conciliate, the next proposed step is mediation. Director Leen spoke up to say, “We want mediation to be a part of the regular process to avoid the ALJ (Administrative Law Judge), as this takes years.” He hopes contractors will “engage with the Agency more,” and no more “turning your nametag around” at conferences and events where both parties are present. He assured listeners that no action would be taken against your organization if you seek compliance assistance!
OFCCP Ombudsman Marcus Stergio spoke on behalf of the mediation process. As outlined in Directive 2020-03, mediation is the last attempt for a resolution. Mediation works best when both parties are invested in a resolution, referred to as “ripe for mediation.” OFCCP reserves the right to mediate at any stage, though typically a mediation referral occurs following a Show Cause Notice but before any enforcement is issued.
There are three options for selecting a mediator. (1) The Federal Mediation and Conciliation Service (FMCS) (2) the OFCCP Ombudsman; or (3) any qualified individual proposed by the contractor.
If the parties cannot agree on the parameters of a “pre-referral mediation” (meaning a mediation before OFCCP gives up its jurisdiction over the audit and transfers the file to the Office of the Solicitor for consideration of possible administrative litigation), OFCCP retains the discretion to refer a case to the Solicitor’s Office without first attempting mediation. Marcus explained that one best practice is to select a neutral location, i.e., the office space of a mediator. FMCS has area offices around the country, and although meetings are currently virtual due to the pandemic, many virtual meeting platforms allow for “breakout rooms,” so parties may converse in private. The FMCS has done over 1,500 virtual mediations since the on-set of the COVID-19 pandemic (unrelated to OFCCP matters). The OFCCP conducted a virtual mediation last week and reported that it went so well; it may even continue to host virtual mediations post-COVID-19.
OFCCP Ombudsman Marcus Stergio explained that he follows four standards of practice as an Ombudsman. These are confidentiality, neutrality, independence, and informality. To date, he has resolved 73 of the 96 referrals received. These referrals have come from a wide variety of groups, including federal Government contractors and subcontractors, contractor representatives, complainants, and even OFCCP representatives. Items of concern include:
- not seeing progress in an audit
- the handling of issues during an audit
- the lack of transparency during an audit
Marcus plans to continue his outreach campaign to educate the contractor community about the Ombuds program. You can catch him virtually at the Arizona ILG meeting in October, and in-person at the DirectEmployers Annual Conference next April in Indianapolis. He will release an annual report containing referral statistics, the issues presented, the resolution methods used, and his recommendations for the OFCCP based on the referrals and outcomes over the past year.
OFCCP plans to soon place the recording of this webinar on its website.