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Quick Hits
- OFCCP published directive providing new procedures for “expedited” conciliation during compliance evaluations.
- OFCCP anticipates that negotiations under these procedures will last no longer than sixty days.
- Such expedited conciliation agreements require reporting to OFCCP and may allow the agency to scrutinize and possibly renew investigation of future contractor data and processes.
The new procedures allow contractors facing a compliance review to waive formal pre-enforcement notice procedures in favor of an “expedited” conciliation process, details of which depend on whether OFCCP’s investigation seeks remedies for discrimination or “technical” violations. Any Early Resolution Conciliation Agreement (ERCA) arising from these expedited procedures will contain a three-year monitoring and reporting period—which is a longer time frame than that seen in most current conciliation agreements—and the ERCA will exempt the contractor from future compliance evaluations for three years from the date of the ERCA, which is not a change to current practice in three-year conciliation agreements that are not “expedited.” OFCCP anticipates that all ERCA negotiations under these expedited procedures will last no longer than sixty days; if the parties cannot agree to terms or if the “contractor” fails to negotiate in good faith, OFCCP will discontinue ERCA negotiations.
We anticipate that OFCCP district offices will be eager for contractors to avail themselves of these expedited procedures and will more quickly identify alleged violations that can be “efficiently” resolved through an ERCA. Contractors may want to pay careful attention to ensure that appropriate defenses are raised to alleged violations—especially those related to alleged discrimination—prior to agreeing to a quick resolution through a three-year conciliation agreement. Such agreements require reporting to OFCCP, through which OFCCP can scrutinize and possibly renew investigation of future contractor data and processes.
Ogletree Deakins’ OFCCP Compliance, Government Contracting, and Reporting Practice Group will continue to monitor developments and will provide updates on the OFCCP Compliance, Government Contracting, and Reporting blog.
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