On November 30, 2018, the Office of Federal Contract Compliance Programs (OFCCP) announced it was rolling out three directives to “reinforce OFCCP’s commitment to fulfilling its enforcement mission with more accountability and efficiency, as well as the Department’s efforts to maximize the effectiveness of compliance assistance outreach to assist contractors in meeting their responsibilities.”

The three directives are aimed at (1) “clarifying the Agency’s compliance review procedures,” (2) “establishing a process to resolve compliance evaluations at the earliest stage possible with corporate-wide compliance,” and (3) “establishing an opinion letter process and enhancing OFCCP’s Help Desk.”

Directive 2019-01: Compliance Review Procedures

This directive rescinds Directive 2011-01, which “established procedures to replace abbreviated desk audits with full desk audits.” The directive emphasizes that going forward, compliance reviews will be conducted in accordance with OFCCP’s Federal Contract Compliance Manual and “other recent directives that shorten full desk audits and conciliate violations more efficiently.” According to the agency, OFCCP can maximize its resources by increasing the number of compliance evaluations, shortening desk audits in which OFCCP reviews personnel activity and compensation data submitted by contractors, and conciliating alleged violations more efficiently. This directive also clarifies that any contractor establishment that OFCCP audits can expect not to be audited again for 24 months after closure of a compliance evaluation or acceptance of a progress report under a conciliation agreement.

Directive 2019-02: Early Resolution Procedures

This directive establishes OFCCP’s new early resolution procedures (ERP). The goal of this directive is to (1) “resolve supply and service compliance evaluations at the earliest stage possible with corporate-wide compliance,” (2) help contractors achieve the goal of equal employment opportunity, and (3) “reduce the length of compliance evaluations by resolving problems expeditiously.” OFCCP wants to quickly resolve violations through the ERP and—for multi-establishment contractors—work with them to develop corporate-wide corrective actions to remedy “material, non-discrimination” violations such as recordkeeping, applicant tracking, failure to implement audit and reporting systems, and failure to conduct self-analysis. If the ERP is utilized, OFCCP will not schedule a new compliance evaluation at the establishment being audited for 5 years from the date of the Early Resolution Agreement with Corporate-Wide Corrective Action (ERCA). The directive also clarifies new procedures to be utilized in investigating and resolving “material” discrimination violations. 

Directive 2019-03: Opinion Letters and Help Desk 

This directive outlines OFCCP’s plan to enhance its Help Desk by “making certain Help Desk inquiries and responses dynamically available and searchable as a self-service option on OFCCP’s website.” With this, OFCCP hopes stakeholders will benefit from prior inquiries that will, in turn, lead to greater efficiency. OFCCP also plans to incorporate the use of opinion letters as part of its guidance to employers, employees, and the public to offer more “certainty about how OFCCP exercises its authority.”

Ogletree Deakins’ Affirmative Action and OFCCP Compliance Practice Group will report on these three new directives in further detail on the Affirmative Action/OFCCP and Government Contractors blogs. Stay tuned.


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OFCCP Compliance, Government Contracting, and Reporting

The experienced attorneys in our OFCCP Compliance, Government Contracting, and Reporting Practice Group advise and defend federal contractors and subcontractors on jurisdictional, compliance, and enforcement issues relevant to government contracting, including those involving the Office of Federal Contract Compliance Programs (OFCCP).

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