If your company is a federal contractor or subcontractor, you should be more vigilant than ever in complying with affirmative action obligations. Why? Because the Obama administration has pledged to step up enforcement. State and local governments are increasingly imposing similar obligations on those employers who contract with them. The consequences of non-compliance are significant. Companies that fail to comply often face findings of systemic discrimination and demands for large monetary settlements. Now, more than ever, employers must proactively manage their governmental relationships to maximize compliance with these obligations. Companies should determine the extent of their obligations and, at a minimum, actively review their affirmative action plans and routinely self-audit their personnel activities and compensation practices.

Affirmative Action Plan Development

Ford & Harrison assists clients in the design, maintenance, and implementation of written affirmative action plans ("AAPs") that are consistent with applicable law and implementing regulations. AAPs prepared in accordance with the federal affirmative action laws include:

• written narratives 
• an organizational profile
• job group analysis 
• availability analysis 
• utilization analysis 
• goals analysis 
• comprehensive analysis of compensation data and personnel activity such as hires, promotions, transfers, and terminations

The firm also prepares AAPs in accordance with state and local affirmative action laws.

Our team of attorneys and trained professionals provides pragmatic advice and counsel based on the results of plan analyses and assists with the full implementation of AAPs (such as identifying outreach organizations, posting jobs with local job services, etc.). Plans prepared by Ford & Harrison have consistently withstood the scrutiny of OFCCP auditors.

For companies that prepare their AAPs internally, Ford & Harrison can assist in evaluating their current AAP programs for compliance issues and in identifying potential areas of deficiency or liability under the OFCCP guidelines, either on an annual basis or in preparation for an OFCCP audit.

OFCCP Audit Assistance

Ford & Harrison attorneys have extensive experience representing covered contractors and subcontractors in OFCCP Focused Reviews, Compliance Reviews, and Corporate Management Reviews. Such representation includes assisting with the final preparation and review of AAPs; reviewing and analyzing supporting documentation (including compensation analysis); providing advice and counsel regarding strategy; conducting management training seminars in preparation for the onsite portion of an OFCCP audit; and negotiating with the OFCCP to resolve any outstanding issues that may arise during an audit.

Glass Ceiling Audit

Increasingly, the OFCCP is carefully scrutinizing corporations for the existence of "glass ceilings" or barriers to the advancement of women and minorities. Ford & Harrison's affirmative action team assists companies subject to Glass Ceiling Audits (known as Corporate Management Reviews) to navigate this complicated area. In addition, our team has conducted mock audits (discussed in more detail below) to help companies identify and remedy potential areas of vulnerability prior to an actual Corporate Management Review.

Compensation Analysis

Ford & Harrison has expertise and software to conduct compensation analyses for covered contractors and subcontractors. In this regard, our attorneys have worked extensively with the statistical models used by the OFCCP when it reviews compensation data. Ford & Harrison attorneys have also worked in concert with the nation's leading statisticians to challenge OFCCP findings of compensation discrimination through the utilization of sophisticated statistical analyses, such as multiple regression analysis and cohort analysis.

Challenges to employee compensation are increasing in every area of employment law especially in light of the Lilly Ledbetter Fair Pay Act and the OFCCP and EEOC's focus on compensation. In the current climate, a proactive approach regarding undertaking compensation analyses may be warranted.

Employment Testing

Increasingly, the OFCCP and EEOC are challenging companies' use of selection devices especially those devices which create adverse impact against protected class members. Companies need to navigate this area carefully and ensure that any tests utilized are closely tailored to meet the company's objective and, when appropriate, have defensible validation studies prepared. Ford & Harrison attorneys can assist companies with the selection and implementation of employment tests.

Internal Monitoring and Reporting

Our attorneys have conducted a broad range of statistical analyses related to internal monitoring and reporting, including adverse impact analyses, JAAR analyses, and compensation analyses to assist clients in the identification of potential problem areas. In addition, the affirmative action team has experience with a variety of software products and can assist companies with the selection and implementation of such software.

Jurisdiction

Administrative agencies, including the OFCCP, frequently attempt to assert broad jurisdiction that may not be supported by applicable law. Ford & Harrison attorneys have extensive experience counseling and advocating for clients regarding the application of applicable affirmative action laws including single entity issues and identifying "covered" subcontractors.

Training

Ford & Harrison regularly provides affirmative action training concerning both plan development and audit preparation. Specifically, we maintain extensive training materials that can be utilized to train in-house human resources staff and other professionals on preparing AAPs. We also offer management training in preparation for the onsite portion of a Compliance Review or Corporate Management Review. Each training program is tailored to the client's individual needs and is designed to communicate most effectively with the intended audience. At the same time, our experience and library of previously prepared materials enable us to provide training in a cost-effective manner.

Mock Audits

Ford & Harrison attorneys and professionals have experience in conducting comprehensive mock audits for corporations either in anticipation of Compliance Reviews or Corporate Management Reviews, or in an effort to proactively ascertain their compliance with applicable civil rights laws (including, but not limited to, federal affirmative action laws). Mock audits also are a useful diagnostic tool to assess employee perceptions regarding corporate communication and commitment to corporate diversity.

Administrative Litigation

Ford & Harrison also represents companies in connection with administrative litigation arising from audits. This includes defending contractors and subcontractors against allegations of unlawful discriminatory practices, as well as assisting companies in maintaining the confidentiality of materials submitted to the OFCCP which are thus covered by the federal Freedom of Information Act and similar "sunshine" laws.