June 2012 What happens if the Batter steals first base?

At the risk of igniting explosive Blog threads written by those who despise sports analogies in ANY context, or setting off counter-Bloggers who insist on using ONLY football analogies, the perplexing question of what to do if a batter in baseball just up and steals first base is now arising often in the context of OFCCP audits.

There is nothing in the Code of Rules governing the playing of baseball games by professional teams of Major League Baseball which addresses what should happen if a batter just presumptuously drops his bat in the batter's box before the 4th ball, or before striking the ball into play, and happily trots down the first base line and thereafter simply occupies First base. (Occupying First Base would have been a worthy objective of the Occupy Movement, as it has otherwise been for centuries for millions of people before the Occupy Movement). Veteran baseball umpires I have consulted over the years about this intriguing question have always speculated that they have the inherent power to order the presumptuous Batter off of First Base.

Some speculate there is even inherent authority for the umpire to accuse the Batter of being improperly out of the batter's box. Boy, but don't you just hate to hear about "implied" or "assumed" authority…to avoid striding down what otherwise is soon an increasingly slippery path? "Assumed" by whom? And when do you know when any particular rule is not implied…and when others are implied?

In fact, the more one frets about the problem about how to get a thief off of First Base, the more the analogy starts to form as to very similar problems with OFCCP demanding to take documents and to seek information which is not theirs to take or to seek. Or, are OFCCP's powers of access simply "implied" or "assumed"?

The issues in OFCCP audits which raise these troubling conundrums is OFCCP's recent and ever evolving audit protocols in which OFCCP feels complete immunity to just up and demand whatever document any local OFCCP Compliance Officer (CO) "deems relevant". Some COs demand "12 factors" of data when the contractor sends OFCCP it's response to "paragraph 11" (seeking generalized, annualized compensation data) at the outset of the Desk Audit. Other COs don't even wait for the contractor's response to paragraph 11 before they gallop ahead and make demands for the "12 factor" data, or perhaps sua sponte and on-the-fly even enlarge the 12 factors to 15 or 16 factors, or I have even seen 9 and 22 factor "follow-on" requests.

And a Big Mac To Go…

And lately, we see emerging from many OFCCP offices, typically during the early stages of a Desk Audit, various versions and forms of the "kitchen sink document request" (more technically known as "The Additional Questions List"), such as:

• requests for FMLA and pregnancy policies;
• a listing of all sources who have ever sent the company any candidates, parsed to reflect which sources yielded a Hire to the Contractor;

Or, here is a recent gem from the Pacific Region (warming up to host the Hawaii NILG meeting in late August in Kona (Big Island), Hawaii.) I have reported this verbatim…including the absence of any Office of Management and Budget (OMB) number authorizing this data collection pursuant to the Paperwork Reduction Act:

1. Provide the complete name, title, complete address and phone number for the following Points of Contact:
   
   1. CEO at the corporate level
   2. CEO at the establishment level
   3. AAP/EEO at the corporate level
   4. AAP/EEO at the establishment level


2. Provide a copy of the company's compensation practices, to include: policy, guidelines, market reviews or other procedures.


3. Provide a written response explaining in detail what factors impact base salary and merit increases.


4. Are there any tests that are given for employment or promotion opportunities?


5. If yes, to #4: Provide the name of the test(s), description of the test(s) and the job titles in which they apply.


6. Provide a written response or a copy of the company's hiring, promotion and termination practices, to include policy and guidelines.


7. Identify the specific location of posting(s) where employees and/or applicants are notified of the hours and location as to when they can review the company's Affirmative Action Plan.


8. Provide evidence to support the company's posting (i.e. comprehensive list and supporting documents) identifying the jobs that were posted with the State of California Employment Development Department during the evaluation period.


9. Provide evidence to support the company's outreach and recruitment efforts, (i.e. comprehensive list and supporting documents) specific to: Disabled, Females, Minorities and Veterans which were conducted for the respective job announcements during the evaluation period.

Tiptoeing Through The Tulips…

Or, this may be my favorite: from the Mid-West Region in 2012 to a contractor which had submitted its response to OFCCP's audit Scheduling Letter:

1. The EEO-1 Reports for 2007, 2008 and 2009 that were included in the AAP list about 25 employees. The job group analysis lists over 2,000 employees. Please submit the EEO-1 Reports for 2007, 2008 and 2009 for the facility located at______, IL.


2. Documentation of the substantive Good Faith Efforts the facility made to recruit qualified females and minorities for the Crafts and Service Workers job group. The AAP indicates that contact would be made with the local Urban League, local vocational schools, and training centers no later than January 1, 2010 to inform them of the company's interest in attracting qualified women and minority applicants. Please provide documentation to show this contact was made, and any responses received back. Please submit any other documentation that shows the company made Good Faith Efforts to meet its goals.


3. A copy of the VETS-100 report for 2009 for this facility.


4. A copy of an Illinois Department of Employment Services posting from the time period of 8/1/2008 to 9/31/2009 [sic].


5. A list of requested accommodations for religious observances or maternity leave, if those requests were approved or denied, and the reason for a denial. (This pertains to the review period 8/1/2008 to 9/31/2009 [sic]).


6. A list of requested accommodations for physical and mental limitations of qualified employees and applicants who are individuals with disabilities or disabled veterans, if those requests were approved or denied, and the reason for the denial. (This pertains to the review period 8/1/2008 to 9/31/2009 [sic]).


7. Do application forms request information on medical conditions or type of military discharge? If so, please provide a copy.


8. Does the Company have a policy manual for personnel? If so, are there any medical restrictions generally or for specific jobs?


9. Do position descriptions/qualifications standards contain any medical restrictions?


10. Are pre-employment physical examinations required for promotions or other changes in status?

Off To The Races…

QUESTIONS: So, may (not can) OFCCP do this? May OFCCP request all of these documents during a Desk Audit and even before it has identified any "indicators" of possible unlawful employment discrimination? OFCCP believes in this Administration it can obtain any documents or information it wants during a Desk Audit because:

1. OFCCP gave notice to the public in its Active Case Enforcement (ACE) Directive (Directive 295 (12/16/2010) that it was abandoning OFCCP's longstanding "tiered review process" (without expressly so stating) which the Clinton Administration innovated in 1996 to accelerate OFCCP through audits which did not show early promise of revealing unlawful employment discrimination. What OFCCP did say in its ACE Directive was that;
   
   "A full desk audit will be performed in every compliance evaluation to ensure the contractor's compliance with EO 11246, Section 503, and VEVRAA."
   
   The effect of this change was to broaden, not narrow, OFCCP's Desk Audits to now sweep within them Section 503 and VEVRAA compliance investigations. But that change alone does not explain OFCCP's sudden current practice of wide-ranging and unbridled gallops through contractor file rooms during Desk Audits. That explanation lies elsewhere.
   
   Left unstated in the ACE Directive was how OFCCP was to determine what other information to gather in an audit, and when (Desk Audit? On-Site?). Rather than writing that down for the public to see, OFCCP has orally tutored its compliance staff to obtain during the Desk Audit any information they "deem relevant" to determine compliance. So, COs are off to the races and different OFCCP Offices now fashion different types of document requests.
   
   Fox Comment: OFCCP is twice in error here. To comply with the Administrative Procedure Act, (which governs the way federal agencies may propose and establish regulations and sets up a process for court review of aberrant government actions), OFCCP should have published in the Federal Register Notice of its intent to depart from OFCCP's longstanding audit practice (for 14 years: 4 in Clinton, 8 in Bush and 2 in Obama) to engage the so-called "tiered review process" and winnow down the audit in scope and size based on "indicators" (of potential or actual violations) OFCCP discovers. Second, the Paperwork Reduction Act requires OFCCP to obtain OMB's approval before collecting documents from members of the public 10 times or more. Once these data collection requests become standardized, and not customized to the specific findings of an audit, OFCCP must obtain OMB approval.

Glade "Freshener" to the Rescue…

2. OFCCP would also say that it has now won the USA case and the Frito-Lay case, both of which allowed OFCCP to gather more information and contractor documents during the Desk Audit than just those OFCCP identified in its audit Scheduling Letter and attached Itemized Listing. The USA court allowed OFCCP to gather more detailed compensation data after an OFCCP District Director created some cockamamie, one-off "analysis" (technical legal term!) of USA's compensation data to find an "indicator" (of what?). The Frito-Lay court, by contrast, allowed OFCCP to require Frito-Lay to "freshen" the disparity data for Hires during the Desk Audit beyond that called for in the Itemized Listing.

So, How Do You Throw the Presumptuous OFCCP off of First Base?

Well, you actually have to do something more than to just bemoan poor fate and the poor state of the world. You have to raise your hand. You actually have to get up, burn some stored calories, stomp your feet, and kick up some dust. When OFCCP "steals first base", you have to screw up your courage to resist. You have to endure "butting heads" with OFCCP and politely, but firmly, tell its COs: "No." And, you have to have your client or company management behind you so that you do not embarrass yourself by folding your position should OFCCP eventually threaten to file its Administrative Complaint to compel the contractor to comply with its orders (ala USA and Frito-Lay).

Ok, it takes a lot of courage, probably more courage than a baseball club manager stomping out of the dugout to yell at an umpire that Blue needs to throw the rascal off of the stolen First Base. (That doesn't take very much courage, though, since we all know how that scrimmage is going to come out: the batter will be thrown off the purloined base and returned to the batter's box to do the work to which he was originally assigned). But, with OFCCP, the likelihood of success is less certain. Depending upon the facts, the company might escape unscathed from the audit. The actual cost to defend seems high, but perhaps (maybe; surely; possibly) less than the cost to successfully defend the audit? But, are you going to feed the Moose the Muffin? (See my March 2012 Column). Nothing but terrible choices (we also discussed a contractor's 4 major responses to OFCCP in the bottom of my March Blog). Choices. "Whatcha gonna do? Whatcha gonna do?" You must decide, because this is happening: OFCCP now steals First Base every day of the week.

Thanks…John C. Fox

THIS COLUMN IS MEANT TO ASSIST IN A GENERAL UNDERSTANDING OF THE CURRENT LAW AND PRACTICE RELATING TO OFCCP. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. COMPANIES OR INDIVIDUALS WITH PARTICULAR QUESTIONS SHOULD SEEK ADVICE OF COUNSEL.