The OFCCP has announced that it intends to update affirmative action rules for construction contractors. The goal was to have proposed rules by April 2014. Although it has not met that goal, to all of you construction contractors out there, beware! The OFCCP has not forgotten about you! Its September 16 announcement of a settlement with Fort Myer Construction is a loud and clear warning of what is in store for you if your hiring, recruiting and compensation practices do not meet Affirmative Action requirements and you mistreat your workers.

The Background:

Fort Myer Construction is a D.C.-based minority-owned company that builds, repairs, and maintains streets, roads, bridges and underground utilities. Each year it receives hundreds of millions of federal dollars for projects with the U.S. DOT, the General Services Administration, and the Navy Department among a number of other federal agencies. As of January 2011, Fort Myer Construction was also part of a project involving the Department of Homeland Security, valued at over $25 million and expected to last over 1 year. Such a large project is deemed a “mega construction project” and therefore a priority to the OFCCP. As such, the OFCCP investigated Fort Myer and all other contractors involved in the project.

The Investigation:

The OFCCP investigation, which included interviews of more than 300 workers, started in January 2011 and focused on Fort Myer Construction’s employment practices in 2010. The investigation resulted in findings that a) Fort Myer Construction discriminated against 27 qualified women and 136 qualified African-Americans who applied for laborer positions; b) it unfairly terminated 8 African-American skilled laborers; and c) it engaged in a practice of assigning equally qualified workers performing the same jobs to projects paying different hourly rates and varying numbers of hours each week, resulting in lower wages for 44 African American and 156 Hispanic laborers.

While the above employment practices were bad enough, sadly, that is not all the OFCCP found. During the investigation, OFCCP compliance officers received more than 30 phone calls alleging harassment, intimidation, threats and coercion. Supervisors a) made derogatory comments to African-Americans and Hispanics, and in one case, to a disabled veteran; and b) sexually harassed and tried to date female workers. Even that’s not all. Female African-American employees found themselves locked out of restroom facilities and found feces in their trucks. There is more: a company vice president tried to discourage Hispanic workers from talking with OFCCP compliance officers conducting an on-site review. Now here is perhaps the “kicker”: A superintendent made inappropriate sexual jokes –to a female compliance officer!

The Settlement:

Fort Myer Construction will be paying a hefty price for its misdeeds. For starters it will pay the victims $900,000 in back pay and interest to 371 class members, offer jobs to seven female and 30 African-American class members as laborer positions become available, and implement extensive training and monitoring measures to ensure that its employment practices conform to the requirements of affirmative action laws. Fort Myer can expect the OFCCP to be watching them for a while!


Other Recent Cases Involving Construction Contractors:

While this case is the most recent involving the OFCCP and construction contractors, it is not the only one.  Last year, M.C. Dean, a D.C.-based design-build and systems integration corporation, agreed to pay $875,000 to settle allegations of using invalid pre-employment testing procedures that unfairly excluded a disproportionate number of minority candidates in violation of E.O. 11246. On April 2, 2014 San Juan-based Constsructora Santiago II Corp agreed to pay $40,000 to three female carpenters to settle allegations of sexual harassment, retaliation and denial of regular and overtime work hours made available to similarly situated men. Finally in May, 2014, the OFCCP announced a settlement of its case against Louisiana-based Bertucci Contracting in which Bertucci paid $70,000 in back wages and interest to 14 applicants previously rejected based on a hiring process that resulted in disproportionate exclusions of qualified minorities.

The Lessons:

If you are a construction contractor, know that the OFCCP is as interested in your employment practices as those of any other type of federal contractor. The fact that the construction industry may still be male-dominated will not give you a license to mistreat female workers. Furthermore, being a minority-owned business will not save you from your non-compliance or bad behavior. Regardless of what type of contractor you are however, make sure that any selection procedures you use are job-related, validated in compliance with Uniform Guidelines for Employee Selection Procedures (UGESP) and do not disproportionately impact members of classes protected under affirmative action laws.

For more information, contact Ahmed Younies at (714) 426-2918 x. 1 or [email protected]