Compliance Enhancement Referral Procedures for FSP and CCD

After today, you will know… What should I refer? When should I refer it? How should I refer it? What happens next?

Compliance Enhancement is… A second-level approach to obtaining compliance with EEOC rules and orders A vehicle for referring egregious noncompliance to OFO senior management, the Commission, the Chair Also referred to as “Compliance Enforcement” or “CE”

QUESTION 1: What should I refer? Program Noncompliance* Complaint Processing Pattern of Findings Adjudicated Relief*

Role of FSP Staff in Compliance Enhancement Agency Oversight Division (AOD): staff are responsible for identifying noncompliance issues after reviewing multiple sources, such as: (1) MD-715 reports, 462 reports, and non-compliance reports; (2) correspondence and news media; (3) information directly from the agency; and (4) onsite visits or virtual conferences. Report and Evaluations Division (RED): staff conduct a program evaluation. Special Operations Division (SOD): using 29 CFR 1614.102(e) and 1614.503, SOD may refer non-compliant agencies to the Chair and/or Commission.

Program Noncompliance: Conflicts of Interest CONFLICT OF INTEREST – ORG STRUCTURE No firewall between EEO Director / GC EEO Director reports to OCHCO / HR or OGC EEO Director reports to someone other than Agency Head (exclude OCHCO / HR, OGC) Other

Program Noncompliance: Mandatory Programs Types of Programs Types of Noncompliance EEO ADR (in-house or outside) Anti-Harassment Program Reasonable Accommodation Program Special Emphasis Programs Women Hispanics Individuals with Disabilities Absence of mandatory program Deficiency in mandatory program Failure to establish written procedures Procedures non-compliant with EEOC regs Refusal to permit ADR for certain bases

Program Noncompliance: Annual and Quarterly Reports and Statements Types of Reports Types of Noncompliance Form 462 MD-715 No FEAR Act (quarterly) No FEAR Act (annual) EEO Policy Statement Failure to File / Post / Submit Untimely Filing / Posting / Submissions Substantive Inadequacies Failure to Identify Barrier (MD-715) Failure to Implement Barrier Elimination Plan Deficient Implementation of Barrier Elimination Plan

Program Noncompliance: Program-Level Issues with Complaint Processing Untimeliness (pattern of) Counselings ROIs FADs Final Agency Actions Insufficient Staff Training New Counselors and Investigators – 32 hours Experienced Counselors and Investigators – 8-hour refresher

Noncompliance with Adjudicated Relief Failure to Submit Compliance Report Attorney Fees Awards Back Pay (5 C.F.R. § 550.805) Interest (5 C.F.R. § 550.806) Breach of Settlement Noncompliance with Final Agency Action Civil Action Terminations Compensatory Damages (remanded for determination) Compensatory Damages (orders to pay) Disciplinary Action Consideration Final Agency Decision (FAD) Personnel Actions Petition for Enforcement (terminating compliance) Placement in Interim Position (upon AJ finding) Posting a Notice of Violation Restoration of Leave Investigation Supplemental Investigation Training

QUESTION 2: When should I refer it? “Each situation will depend upon the nature of the alleged noncompliance, how the noncompliance comes to EEOC’s attention, and how the agency responds to EEOC’s inquiries and attempts to obtain compliance.” EEOC Final Rule, 77 Fed. Reg. 43498 (July 25, 2012)

Facts to consider… Nature of noncompliance Length of time / number of instances Conflicts of interest: a single incident may be appropriate for referral. Untimely Form 462s: look for a pattern over several consecutive years. Size of agency (when applicable) For example: Complaint Processing untimeliness. Consider the percentage of untimely investigations (5-20% as a threshold) rather than the number alone. Apply a larger percentage for smaller agencies. Agency’s response / efforts to resolve it

Before referring a CE matter to SOD, ask yourself… Have I given the agency notice of the noncompliance and a reasonable opportunity to correct it? Has the agency nonetheless failed to respond or to correct the noncompliance? Have I been in touch with the agency about this issue within the last six months?

AOD Referral Procedure Review Process by Equal Employment Specialists (EES)  In cases where noncompliance is discovered, AOD staff must take the following steps to address the issues and ensure consistency with OFO policies and procedures: Phase I: Data Collection Phase II: Assessment Phase III: Referral Decision

Phase I: Data Collection AOD’s EEO Specialists review agencies’ MD-715 reports and conduct technical assistance visits (TAs) to discuss the status of its compliance with federal EEO laws, regulations, and management directives. The Specialists memorialize their findings and recommendations in feedback letters. If Specialists communicate with agencies via email or the telephone, they will record their discussions in SharePoint’s OFO Oversight Form.  After OFO issues a feedback letter to the agencies, they must submit a “Compliance Report” to the EEOC within six months, explaining their progress in correcting the deficiencies.

Phase II: Assessment Within 30 days of receiving a Compliance Report, the Specialist must conduct a preliminary assessment to identify whether the agency corrected the program deficiencies, and if not, whether the agency has demonstrated meaningful progress in correcting the deficiencies. The Specialist must send their assessment, the Compliance Report, and any supporting documents (e.g., feedback letters, emails, phone logs, etc.) to the AOD Attorney Advisor. The Specialists’ Assessment must include the following information:   On [date], OFO notified the agency about the following program deficiencies: [list them]. The Specialist should describe and provide the supporting documents that contain this information. After reviewing the agency’s Compliance Report, we determined that the agency has corrected the following deficiencies: [list them]. However, we also identified that the following program deficiencies still exist: [list them]. Of the pending deficiencies, the agency has not demonstrated meaningful progress to correct the following deficiencies: [list them]. The Specialist will then explain how they reached this decision for each deficiency.  The Specialist will recommend the next course of action (e.g., referral to SOD, RED, and/or ARP).

Phase II: Assessment, continued The Attorney Advisor will upload the Specialist’s Assessment and the supporting documentation by agency name in SharePoint. For access the OFO Agency Oversight Division, Compliance Process account visit: https://www.office.com. Then, click on Agency Oversight Group, then on the left column, click on “Compliance Process Library” https://eeoc.sharepoint.com/sites/AgencyOve rsightDivision/ReviewItems/AllItems.aspx.

Phase III: Referral Decision Within 30 days of receiving the Specialist’s Assessment, the Attorney Advisor will either initiate the enhanced compliance process or return the matter to the Specialist for further technical assistance. The matter be returned to the Specialist if: Supporting documents are missing; Evidence does not support finding of lack of meaningful progress; or Agency had insufficient time to correct the deficiency. The Attorney Advisor will consider the Specialist’s recommendation when determining the appropriate referral for enhanced compliance. Before referring an agency to SOD, RED, or ARP, the Attorney Advisor must consult with the AOD Assistant Director.

QUESTION 3: How should I refer it?

List of Agencies

Lists of Noncompliance Codes

Provide associated docket numbers (CCD)

Identify or attach supporting documents

Supervisory approval and signature

Submit to… CE@eeoc.gov

QUESTION 4: What happens next? SOD will process and make a recommendation to appropriate OFO management OFO Director may issue a Notice of Noncompliance to the EEO Director, giving the agency another opportunity to comply, but if not… OFO Director may refer the matter to... Chair (all four types of noncompliance) and/or Commission (adjudicated relief, only)

…and then? Chair or Commission may issue a Final Notice of Noncompliance to the agency head, giving the agency yet another opportunity to comply, but if not... Chair may publicly identify the agency Commission may issue a Notice to Show Cause to the agency head and Order agency head to respond in writing OR Order agency head to appear before the Commission Commission may also refer to another agency (e.g., Office of Special Counsel)