1. Enterprise-Wide Enforcement Sandra Scott Zeigler for the AZILG

2. Why Enterprise-Wide? “Enterprise-wide investigations, based on patterns of violations and identification of egregious violators, will enable the OFCCP to remedy deficiencies across an entire corporate structure, rather than one facility at a time. Coupled with a renewed collaborative enforcement approach with the Office of the Solicitor (SOL) and other Departmental agencies, this enforcement strategy will increase the rate of compliance for contractors who engage in egregious violations.” OFCCP 2013 Budget Justification. “Enterprise-wide investigations, based on patterns of violations and identification of egregious violators, will enable the OFCCP to remedy deficiencies across an entire corporate structure, rather than one facility at a time. Coupled with a renewed collaborative enforcement approach with the Office of the Solicitor (SOL) and other Departmental agencies, this enforcement strategy will increase the rate of compliance for contractors who engage in egregious violations.” OFCCP 2013 Budget Justification.

3. Why Enterprise-Wide? Clears and closes a bunch of old cases all at once. Clears and closes a bunch of old cases all at once. Combines the remedies and victim numbers to create a more impressive- sounding result. Combines the remedies and victim numbers to create a more impressive- sounding result. Allows the weaker results at some facilities to be resolved because they get included in the enterprise-wide remedy. Allows the weaker results at some facilities to be resolved because they get included in the enterprise-wide remedy.

4. Why Enterprise-wide? Puts in play the opportunity to get results beyond what would have been available in litigation. Puts in play the opportunity to get results beyond what would have been available in litigation. Much more affordable. Much more affordable. From the contractor’s side, it may cut off further investigation into as yet undetected vulnerabilities. From the contractor’s side, it may cut off further investigation into as yet undetected vulnerabilities.

5. Types of Companies High applicant rates and high turnover rates High applicant rates and high turnover rates Lots of facilities Lots of facilities Company-wide policies or procedures Company-wide policies or procedures Financially stable Financially stable Large Government Contractors Large Government Contractors

6. Types of Issues Current Issues Current Issues Lower skilled jobs with the same title and similar qualifications across multiple facilities affecting same classes of workers Lower skilled jobs with the same title and similar qualifications across multiple facilities affecting same classes of workers Testing cases Testing cases Wish List Issues Wish List Issues Compensation Compensation Disability/Vets Disability/Vets

7. Investigative Process Cases usually investigated separately Cases usually investigated separately Multi-establishment teleconferences may be held to share information about reviews of the company’s facilities in other Regions Multi-establishment teleconferences may be held to share information about reviews of the company’s facilities in other Regions May not become an Enterprise-Wide case until negotiation stage or beyond May not become an Enterprise-Wide case until negotiation stage or beyond

8. Remedies Injunctive relief (the contractor agrees to do something) which may include relief that would not be otherwise available in litigation, and Injunctive relief (the contractor agrees to do something) which may include relief that would not be otherwise available in litigation, and monetary relief (the contractor pays something) monetary relief (the contractor pays something)

9. Remedies Injunctive and Monetary relief may be negotiated separately Injunctive and Monetary relief may be negotiated separately There is some relationship between the two but it is neither consistent nor clear (you may or may not be asked for less money if you are more cooperative on the “do something” remedy There is some relationship between the two but it is neither consistent nor clear (you may or may not be asked for less money if you are more cooperative on the “do something” remedy

10. Injunctive Relief Outside experts may be used if internal reviews that would not otherwise be required are agreed on as part of the conciliation, for example, reviews at facilities other than those scheduled Outside experts may be used if internal reviews that would not otherwise be required are agreed on as part of the conciliation, for example, reviews at facilities other than those scheduled Outside experts may be used on both sides to arrive at the monetary figure Outside experts may be used on both sides to arrive at the monetary figure

11. Injunctive Relief May include activities that the contractor has already implemented or was planning to implement anyway May include activities that the contractor has already implemented or was planning to implement anyway

12. Remedies Generally, a single monetary remedy will be arrived at and the agency will decide how to divide it across the facilities included in the agreement Generally, a single monetary remedy will be arrived at and the agency will decide how to divide it across the facilities included in the agreement Usually, the language is negotiated as if it were basically one document, and this template is used in separate conciliation agreements for each facility. Usually, the language is negotiated as if it were basically one document, and this template is used in separate conciliation agreements for each facility.

13. Remedies Cases that are already in enforcement use the negotiated language in a consent decree, cases that have not been referred for enforcement use it in a conciliation agreement Cases that are already in enforcement use the negotiated language in a consent decree, cases that have not been referred for enforcement use it in a conciliation agreement

14. Inter-Regional Issues Reconciling liability calculations Reconciling liability calculations Reconciling remedy calculations Reconciling remedy calculations Dealing with prior verbal agreements on some terms of settlement Dealing with prior verbal agreements on some terms of settlement Apportionment of the remedy across regional boundaries Apportionment of the remedy across regional boundaries Impact on cases by the same company that are not ready for closure Impact on cases by the same company that are not ready for closure

15. Current Trends That Might Fuel Enterprise-Wide Enforcement Elimination of caps on the number of open reviews increases the likelihood of having a number of open reviews at similar facilities across the country at a single company

16. Current Trends Emphasis on collecting and reviewing corporate-wide policies looking for subjects for “injunctive relief” Emphasis on collecting and reviewing corporate-wide policies looking for subjects for “injunctive relief” Family and Medical Leave Policies Family and Medical Leave Policies Reasonable Accommodation Policies Reasonable Accommodation Policies Compensation Policies Compensation Policies Outreach and Training Policies Outreach and Training Policies Document Creation and Retention Policies Document Creation and Retention Policies Arrest and Conviction Record Policies Arrest and Conviction Record Policies

17. Current Trends More time and more data may be required if the agency moves to designating cases as potentially “Enterprise-Wide” earlier in the investigative process More time and more data may be required if the agency moves to designating cases as potentially “Enterprise-Wide” earlier in the investigative process The Regions may have less authority than usual in negotiating the closure of these cases and may have to check in with National OFCCP and National SOL throughout the negotiation process. The Regions may have less authority than usual in negotiating the closure of these cases and may have to check in with National OFCCP and National SOL throughout the negotiation process.

18. FAAP Directive Issued December 2012 Issued December 2012 Attempts to bring FAAP reviews closer to their intended purpose Attempts to bring FAAP reviews closer to their intended purpose Previous FAAPs were sometimes not related to how the business unit actually functioned and were not always that different from an establishment review. Previous FAAPs were sometimes not related to how the business unit actually functioned and were not always that different from an establishment review.

19. FAAP Directive Multi-Establishment corporations may request OFCCP approval for Functional rather than establishment AAPs Multi-Establishment corporations may request OFCCP approval for Functional rather than establishment AAPs Functional unit may cross Regional boundaries Functional unit may cross Regional boundaries Intended to align reviews with how the company actually operates Intended to align reviews with how the company actually operates

20. FAAP Requirements Currently exist and operate autonomously. Currently exist and operate autonomously. Include at least 50 employees. Include at least 50 employees. Have its own managing official. Have its own managing official. Have the ability to track and maintain its own personnel activity. Have the ability to track and maintain its own personnel activity.

21. Basic FAAP Principles Written approval required Written approval required No automatic renewals No automatic renewals CA and EEO history will be factored in CA and EEO history will be factored in Can use a mix of FAAPs and establishment AAPs Can use a mix of FAAPs and establishment AAPs FAAPs approved for three years rather than five FAAPs approved for three years rather than five Minimum of two evaluations during the term to qualify for renewal Minimum of two evaluations during the term to qualify for renewal

22. Questions????