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OFCCP Proposes Elimination Of The Equal Opportunity (EO) Survey For Federal Contractors

By Eric J. Felsberg
  • January 17, 2006

On January 20, 2006, the Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) (the agency charged with enforcing federal affirmative action compliance), proposed a rule that would eliminate the Equal Opportunity Survey (the "Survey") requirements presently imposed upon all non-construction federal contractors.

The Survey requires contractors to submit data regarding personnel activity, compensation, tenure and other information regarding a contractor's affirmative action programs.  The Survey, which was implemented in 2000, was initially designed as an alternative to the Federal Contractor Selection Systems (FCSS) (then known as the Equal Employment Data System), for selecting contractor establishments for compliance review.

However, the recently-released results of an OFCCP-commissioned study have revealed that the predictive power of the Survey to identify contractors who are out of compliance is "only slightly better than chance."  As such, the "OFCCP has [now] concluded that the Survey misdirects valuable enforcement resources" and does not meet any of the objectives set forth in the 2000 rule.  Additionally, the OFCCP acknowledged the heavy criticism it has received from the contractor community regarding the Survey, noting that it "imposes a significant burden" on contractors.  It has been estimated that it takes contractors an average of twenty-one (21) hours to complete the survey, and costs them an (aggregated) annual sum of approximately $6,000,000.  Contractors who have completed the survey know that twenty-one (21) hours wildly underestimates the actual amount of time needed to complete the Survey and the burden it places on contractors.  The burden, and relatively low return on survey predictability, has lead Deputy Assistant Secretary Charles E. James to conclude that the Survey is "fundamentally flawed," and not serving as a useful tool for selecting non-compliant contractors for review.

The OFCCP has indicated that it will continue to use and develop other selection models, such as the FCSS, to find more useful and cost-effective methods of selecting non-compliant contractors for compliance reviews.  The FCSS currently uses a mathematical model that evaluates workforce data, demographic movement trends, position in industry, geography and compliance history to identify those contractors considered most likely to be non-compliant.

©2006 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

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