1. Compliance Enhancement
Referral Procedures for FSP and CCD

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

3. 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”

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

5. 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 (e) and , SOD may refer non-compliant agencies to the Chair and/or Commission.

6. 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

7. 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

8. 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

9. 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

10. Noncompliance with Adjudicated Relief
Failure to Submit Compliance Report
Attorney Fees
Awards
Back Pay (5 C.F.R. § )
Interest (5 C.F.R. § )
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

11. 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 (July 25, 2012)

12. 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

13. 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?

14. 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

15. 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 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.

16. 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, s, 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).

17. 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: Then, click on Agency Oversight Group, then on the left column, click on “Compliance Process Library”
rsightDivision/ReviewItems/AllItems.aspx.

18. 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.

19. QUESTION 3: How should I refer it?

22. List of Agencies

24. Lists of Noncompliance Codes

25. Provide associated docket numbers (CCD)

26. Identify or attach supporting documents

27. Supervisory approval and signature

28. Submit to…

29. 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)

30. …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)