By Marilynn Schuyler, Schuyler Affirmative Action Practice, in association with the Biddle Consulting Group Institute
Today (May 6, 2020) the Office of Federal Contract Compliance Programs (OFCCP) launched the Ombuds Service and issued the Ombuds Service Referral Form, which provides federal contractors a tool to more efficiently obtain assistance from the Ombudsman. The OFCCP issued two new directives that substantially broaden OFCCP’s use of Alternative Dispute Resolution on April 17, 2020. Directive 2020-04 officially launched its Ombuds program, which provides the structure for the implementation of the Ombudsman, which was re-established in September 2018.[i] Directive 2020-03 formally establishes a mediation program for federal contractors.
The Ombuds Program
The Ombuds Service was established in response to the Government Accounting Office’s (GAO) Equal Employment Opportunity: Strengthening Oversight Could Improve Federal Contract Nondiscrimination Compliance report, dated September 2016, which recommended that OFCCP review and enhance contractor compliance assistance, and increase transparency and communication with agency stakeholders. GAO had expressed concern in the report that “Stakeholders and contractors fear that asking OFCCP for assistance would call attention to them and possibly make them a target for future OFCCP enforcement actions, such as compliance evaluations.”
The mission of the Ombuds Service is to offer an impartial and independent perspective to conflicts between external stakeholders and OFCCP, providing a neutral and, to the extent permitted by law, confidential resource while advocating for fair, efficient, and transparent policies and procedures.
Marcus Stergio was hired as the OFCCP Ombudsman last year and has been serving as a liaison between external stakeholders and OFCCP ever since. External stakeholders include federal contractors and subcontractors, contractor representatives, industry groups, law firms, complainants, worker rights organizations, and current and potential employees of federal contractors and subcontractors. The Ombudsman provides an important tool for stakeholders, as he is part of OFCCP’s broader initiative to improve transparency in compliance evaluation and compliance assistance activities.
One aspect of the role of the Ombudsman is to provide assurance to contractors and other stakeholders that OFCCP is treating them fairly, in a manner consistent with the Agency’s legal authorities, policies, and procedures. Another goal of OFCCP is to improve the efficiency and effectiveness of internal OFCCP operations.
So, what can the Ombudman do for you? OFCCP Director Craig Leen said, “The Ombudsman will provide an independent perspective and facilitate communication between external stakeholders and OFCCP regional and district offices.” The following are examples of the services federal contractors can request of the Ombudsman:
- Informal one-on-one conversations and/or listening sessions;
- Neutral conflict coaching sessions;
- Facilitated dialogue via shuttle diplomacy between OFCCP district and/or regional staff and stakeholders;
- Conciliation and negotiation discussions, conducted neutrally with a focus on preparing parties to effectively communicate;
- Mediation to resolve issues which persist, despite other preliminary attempts at resolution; and
- Large group facilitation, conflict resolution training and education for agency stakeholders and OFCCP staff.
The ombudsman subscribes to several Standards of Practice that include confidentiality, neutrality, independence, and informality. Because this is a neutral role, the ombudsman cannot serve as a representative of a federal contractor. Likewise, he doesn’t serve as a legal representative for OFCCP in negotiations.
The Ombuds Service Protocol contains an overview of the program, including definitions of key terms and goals of the service, the Standards of Practice, functions, records management, and other resources.
Federal contractors are encouraged to review questions on the Ombuds Service Referral Form, before contacting the Ombudsman directly. Confidentiality is provided for all inquiries, and anonymous inquiries are also permitted. If the ombudsman is unable to help, he can provide you with alternative resources. You can reach the OFCCP Ombudsperson via phone (202-693-1174), email (email@example.com), or by completing the newly released Ombuds Service Referral Form.
Pre-Referral Mediation Program
The Department of Labor (DOL) conducted its Philadelphia Pilot Project in 1992 to experiment with the use of alternative dispute resolution (ADR) in cases headed for litigation. Ever since then, several DOL agencies, including OFCCP, have incorporated some form of ADR into their case management system.
On November 30, 2018, OFCCP issued Directive (DIR) 2019-02, Early Resolution Procedures to promote early settlement of supply-and-service compliance evaluations prior to the issuance of a Predetermination Notice (PDN). The issuance of DIR 2020-03, formalizes the mediation process, which will provide an opportunity to resolve matters prior to referring cases to the Office of the Solicitor (SOL) for enforcement.
Mediation employs the use of a third party neutral – a mediator — to facilitate negotiations between OFCCP and a federal contractor. The process is voluntary, and if the parties are unable to come to a mutually acceptable resolution, the matter would continue to enforcement. The mediator will not represent either side and will not be providing a ruling on the issues presented. The option to mediate lies primarily with the contractor, though there are a few specific circumstances in which OFCCP would decline.
The presence of a mediator allows the parties an opportunity to:
- Gain clarity on each other’s positions;
- Identify all relevant issues and interests;
- Receive an impartial perspective about the possibilities for resolution;
- Strategize around concession-making and settlement offers;
- Consider alternative methods to achieving resolution; and
- Design a plan for next steps if settlement is not possible.
The parties may select the mediator from the Federal Mediation and Conciliation Service (FMCS) roster, other qualified federally approved mediators, the OFCCP Ombudsman, and any qualified individual proposed by the contractor. The Directive outlines the steps for selecting a mediator and the mediation process itself.
[i] OFCCP established and maintained an Ombuds position during Director Shirley Wilcher’s tenure (1993-2001).