AffirmativeAction/GovernmentContracts

Substantial monetary liability and debarment from present and future government contracts are just some of the potential penalties faced by contractors and subcontractors who fail to comply with the ever-increasing labor and employment requirements imposed on those who do business with federal, state and local governmental entities. FordHarrison attorneys advise current and potential government contractors and subcontractors about these labor and employment obligations, assists contractors in their compliance efforts, and defend contractors in enforcement proceedings under the many applicable statutes, executive orders and regulations.

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 stepped up enforcement actions. 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.

Our services include:

Affirmative Action Plan Development. FordHarrison 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 FordHarrison 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.

Other services we provide related to affirmative action compliance are:

OFCCP Audit Assistance.  FordHarrison 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 adverse impact analysis with respect to personnel activities and 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. FordHarrison'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.  FordHarrison 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. FordHarrison 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 or selection devices utilized are closely tailored to meet the company's objective and, when appropriate, have defensible validation studies prepared. FordHarrison 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. FordHarrison 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.  FordHarrison regularly provides affirmative action training concerning both plan development, applicant tracking 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 and adhering to the complex applicant tracking requirements. 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.  FordHarrison 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.  FordHarrison also represents companies in connection with administrative litigation arising from audits. This includes jurisdictional issues, 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.  

Construction and Service Contracts.  Construction and service contractors and subcontractors who contract with governmental entities are typically subject to laws and regulations that, among other things, establish prevailing wages and fringe benefits for designated classes of employees working on these contracts. Federal contractors and subcontractors must also observe minimum occupational safety and health standards and must maintain certain records unless a specific exemption applies. Other affirmative labor and employment obligations are often overlooked by the unwary. The Davis-Bacon Act, the McNamara-O'Hara Service Contracts Act, the Copeland Anti-Kickback Act and the recently issued executive orders relating to project labor agreements, prohibitions against use of federal monies to resist unionization and a successor's obligation to hire employees of a predecessor service contractor are just a few of the federal laws and executive orders that may apply to federal contractors. State and local governments often impose similar or more onerous labor obligations. We advise our clients regarding all aspects of these labor and employment obligations including: assisting in identifying the scope of these obligations and evaluating the impact on any bid proposal and/or contract; assisting in developing internal procedures to reduce the risk of non-compliance; reviewing responses to enforcement agencies; and defending clients, if necessary, in enforcement proceedings before administrative agencies or courts.

Other Laws, Regulations and Orders. Our attorneys represent and assist our clients in recognizing, complying with and defending claims brought under many other federal, state and local government labor and employment related statutes, regulations and orders applicable to contractors and subcontractors. Local prevailing wage and benefit requirements, the labor provisions of the Federal Acquisition Regulations, and the employment obligations imposed on recipients of federal funds or grants are representative of the types of issues with which our attorneys regularly deal.

For additional information regarding the services available through our Government Contracts Practice Group, please contact the FordHarrison attorney with whom you typically work or any of the attorneys shown under the "Related Attorneys" tab on the left of this screen.

To learn more about the services we provide to government contractors, please click here.