The Art of Game Playing with OFCCP - Chess or Tug o' War?
November 28, 2012
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How important is your relationship with OFCCP in determining the outcome of a compliance evaluation? Building a relationship with your OFCCP compliance officer is like playing a game of chess or tug o' war. Which game has the most positive impact on the end result of a review?

Tug of war, also known as tug o' war, tug war, rope war, rope pulling, or tugging war, is a sport that directly pits two teams against each other in a test of strength.

Chess strategy consists of setting and achieving long-term positioning advantages during the game. Strategic goals are mostly achieved by the means of tactics, while the tactical opportunities are based on the previous strategy of play. Although the objective of the game is to checkmate the opponent, chess games do not have to end in checkmate—either player may resign which is a win for the other player. It is considered bad etiquette to continue playing when in a truly hopeless position. Games also may end in a draw (tie). A draw can occur in several situations, including draw by agreement, stalemate or a draw by impossibility of checkmate (usually because of insufficient material to checkmate). [Extracted by Wikipedia]

It is Monday afternoon and you finally got a chance to go through your mail. Yikes – you notice an envelope from the Department of Labor and your heart begins to race. It is your worst nightmare as you pull out the OFCCP scheduling letter. Relax and resign yourself to the fact that you cannot go backward. You may be thinking "who should I contact – my boss, my CEO, my attorney, my AA consultant?" It is important to let all parties involved in the process know what the company is about to embark upon. However, you need to strategically decide who should be directly involved with the OFCCP.

You have 30 days to prepare your desk audit submission – so start working! In the pre-Pat Shiu days, you could easily ask for and receive an extension, almost up to one month. Those days are long gone and now, if you are lucky, for a good reason you may get an extension of up to one week. Even though your chances are slim, if you could use an extension, it never hurts to ask.

This is the beginning of your game and it is time to decide which one you want to play – chess or tug o' war. I am aware that my next remarks may not be well received by many of my legal friends; however, I am convinced that they are true. I base these feelings on my early experience working at the Equal Employment Opportunity Commission (EEOC) and the 30+ years of experience working with the OFCCP and EEOC. If you decide to have an attorney represent or speak on behalf of your organization with OFCCP, then you will be automatically playing the game of tug o' war. I believe that it is important to have your Affirmative Action Plans (AAPs) and supporting analyses reviewed by an attorney to create the attorney-client privilege and to seek guidance from an attorney, but not have them act on your behalf at the onset of a review. Remember how the OFCCP has grown its staff over the past several years and that many of the current compliance officers (CO) are new and junior in their role. The intimidation factor they may feel when they work with an attorney is natural, even if the attorney does not take an adversarial position. Like in the game of tug o' war, the CO wants to show that they have control and will immediately tighten the rope by making demands just to prove that they have power. This is even more so when an attorney is involved. This automatically sets up a confrontational relationship and it is difficult, but not necessarily impossible, to change that further along in the review.

If you decide to play chess instead and want and/or need to request an extension, then your game begins with the first phone call to the OFCCP Assistant District Director (ADA), as their contact information is usually on the scheduling letter. The purpose of this call is two-fold: (1) it provides you with the opportunity to cordially introduce yourself to the ADA and let them know that it's your desire to work with the OFCCP and learn from this experience; and (2) request an extension. The first reason is the crucial one and sets the tone for the entire review. Even if you don't get the extension, you have now impressed upon the ADA of your desire to have a positive relationship with OFCCP.

After you submit your desk audit package, you will hear from the CO assigned to your review. This contact may be sent via email or by phone. Either way, here are some tips for developing a positive relationship and making your first moves on the chess board.
  • Immediately respond in some manner to the CO's request even if it is just to introduce yourself and to say that you will begin working on it immediately, and will get it to them as soon as possible. Typically the CO requests the response within 5 days, but your first communication is not making any guarantees.
  • Keep the CO informed of your progress, especially if you will not be able to meet the deadline. Send a follow-up email informing them that you are working diligently and have completed part of the request, but will need more time. I have never had a CO fight back on this.
  • When you submit the response, thank the CO for allowing you the time to ensure a complete and accurate response.
  • If you talk to the CO on the phone, schmooze with them. If you have not worked with them before, open up by letting them know that this is your first [#] review and that you want to learn from them. Tell them a little about yourself and your company and ask about them. It is amazing what they will tell you. If you have already worked with the CO, ask what is new since the last time you worked together. This is one of the most important strategic moves in your chess game. (schmooze – to converse informally : CHAT; also : to chat in a friendly and persuasive manner especially so as to gain favor, business, or connection – Merriam-Webster Dictionary)
  • Remember something personal that the CO shared with you and follow-up about it in future correspondence. For instance, did you have a great vacation visiting your children?
  • Ask questions. Even if you know the answer to the question, it passes the board back to the CO and gives them the feeling that you want to learn from them. This shift will encourage them to open up more to you during the process. Remember that you are playing a game!
Recently, I had a CO share her personal experiences and struggles with the agency. I allowed the CO to express her frustrations and empathized with her plight and she immediately became my advocate within the agency. Even though there were many indicators of potential problems relating to my client's hiring and pay practices, the CO did everything she could to overlook them and get the review closed. When her supervisor refused to concede to the CO's wishes, the CO fought on our behalf which ultimately led to an early resolution with a minor conciliation agreement (CA).

Once you have developed this positive two-way relationship with your CO, you can step back and strategically evaluate your approach to specific requests. Keep in mind that even if you feel like you have a new friend in the agency, they still have to follow internal procedures and make requests sometimes dictated by their supervisor. For this reason, you don't want to be a pushover. At some point, if the request is excessive or inappropriate, you may have to stop playing chess and switch temporarily to tug o' war. This is not necessarily a bad thing because you have already developed the positive relationship with the CO which allows for this maneuver to be successful. So as to not sabotage your relationship, you can test your strength by pulling on the rope gently. For example, telling the CO that you understand why they are making the request; however, you feel that it is excessive or cannot be provided in the manner requested. This type of response will be received easier than saying that it will not be prepared and provided as requested.

For those of you who have been around as long as I have, you probably remember the days when the CO spent one-to-two weeks onsite. Sitting face-to-face with the CO made it much easier to schmooze and develop a "personal" relationship. Back then it was even more important since the CO had negotiating power. Having said that, don't underestimate the power of the current CO's ability to direct the review process and ultimate outcome. If you have been playing tug o' war, you have either tugged the rope to your side or the OFCCP has gained control and you are not a happy camper. If you have ended your chess game, hopefully it has resulted in a draw with a certificate of compliance or an agreed upon conciliation agreement. Here's hoping that you never get into a stalemate and drag the review on forever!