Counselor's Corner — continued from page 17 statements with respect to this certification is prescribed in 18 U.S.C. 1001. □ I affirm this declaration. The annual certification deadline was June 30. While this 2022 deadline has expired before the publication date of this article, financial institutions should take steps now to ensure compliance with their affirmative action obligations moving forward. This means gathering the employment data necessary to prepare AAPs and setting up processes to comply with any other required affirmative action obligations. Risks of Noncompliance The OFCCP will use contractors’ responses in the certification (or their failure to certify) to prioritize contractor establishments for audit. With that in mind, an entity that selects Option 2 (see previous page), or fails to certify at all, is more likely to be selected for audit. The flip side, however, is not true, as the OFCCP makes clear that selecting Option 1 will not exempt a contractor from an audit. In any case, “flying under the radar” regarding affirmative action compliance will be more difficult moving forward. Indeed, even before this certification requirement was enacted, several banks have been subject to OFCCP scrutiny with negative outcomes. It can happen to you! In 2010, an Administrative Law Judge (“ALJ”) ruled that Bank of America discriminated against African-American job applicants for entry-level positions in Charlotte, North Carolina, in 1993 and from 2002 to 2005. In 2013 (after decades of legal battle), the ALJ ordered the bank to pay 1,147 African-American job applicants $2,181,593 in back wages and interest. The ruling further ordered the bank to extend job offers, with appropriate seniority, to 10 class members as positions become available. In another case, the OFCCP alleged that Simmons First National Bank discriminated against Black applicants for entrylevel positions from 2004 to 2005, and against Black applicants for skilled clerical positions in 2005. The bank entered into a Consent Decree to settle the claims. In doing so, the bank agreed to pay $360,187 plus interest to all Black class members who responded to certain notices. Any remaining uncashed funds, if less than $20 per person, were to be used to train current employees about their rights and responsibilities under nondiscrimination statutes. Additionally, if any of the entrylevel or skilled clerical positions at issue in the review became available, the bank was required to offer those positions to interested class members until it hired 30 class members or the interested list was exhausted. Finally, the bank had to provide the OFCCP with semi-annual progress reports for two years. Finally, a 2012 OFCCP compliance evaluation of JPMorgan Chase (JPMorgan) resulted in a civil enforcement action alleging gender-based pay discrimination. In 2020, JPMorgan’s motion of summary judgment was denied, and JPMorgan eventually entered into an Early Resolution Conciliation Agreement to pay at least $9.8 million ($800,000 in back pay and interest; $9 million in pay equity adjustments) across its workforce. As you can see, organizations who fail to maintain adequate AAPs, and/or those who fail to remedy possible indicators of discrimination face stringent penalties from the OFCCP, including monetary penalties, back pay awards, mandated hiring, and even debarment. Next Steps Unfortunately, preparing AAPs and compensation analyses are only part of a covered contractor’s compliance obligations. Other responsibilities, such as posting open jobs with the local workforce development office, including specific nondiscrimination clauses in subcontracts, and making outreach to underrepresented groups, are also required. Financial institutions should take these obligations seriously, and consult with legal counsel promptly to discuss their path toward compliance. Kelli P. Lieurance is a partner at Baird Holm LLP. She focuses on labor and employment law compliance, assisting employers with proactive, rather than just defensive, compliance efforts. Her practical approach not only offers clients a realistic view of their legal obligations, but also assists clients in implementing such obligations in a way that best suits their business needs. Unfortunately, preparing AAPs and compensation analyses are only part of a covered contractor’s compliance obligations. NEBANKERS.ORG 18
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