On January 18, 2023, the Office of Federal Contract Compliance Programs (OFCCP) published a notice proposing to modify its complaint process by adding a pre-complaint step whereby a complainant would be able to lay out basic allegations to allow OFCCP to make an initial assessment on whether the complaint would be proper and would be worth investigating. As part of these changes, OFCCP is further seeking approval for a new Form CC-390 that complainants would be able to use to file this pre-complaint inquiry.
Employees of contractors or subcontractors or applicants for employment may file complaints with OFCCP alleging discrimination or failure to comply with OFCCP contractor obligations. OFCCP then investigates complaints, and if it finds violations, engages in conciliation. If conciliation is unsuccessful, the agency then may pursue enforcement action. The agency currently encourages complaints to be made by filing a complaint form, or Form CC-4.
According to the proposal, OFCCP is seeking to adopt a two-step complaint process that closely tracks the pre-complaint processes of the U.S. Equal Employment Opportunity Commission (EEOC). Under this two-step process, prior to filing a detailed, formal complaint using a Form CC-4, complainants would be able to file “a pre-complaint inquiry” using a newly proposed Form CC-390. The “pre-complaint inquiry” would allow complainants to provide “basic information on their allegation(s) and contact information.” OFCCP would then be able to make an initial assessment on: (1) “whether the allegations are timely;” (2) “whether the inquiry falls under OFCCP’s jurisdiction;” and (3) “whether the inquiry should be investigated, closed or referred to another agency.”
According to the notice, in situations in which OFCCP determines that it would “likely investigate the matter,” OFCCP would provide the individual who submitted the inquiry “with information on filing a complaint (Form CC-4), including information on the anti-retaliation protections under the authorities OFCCP enforces.”
If OFCCP decides to refer the matter to another agency—in most instances the applicable agency would be the EEOC—it would send the pre-complaint inquiry to that agency for review. If OFCCP determines that the allegations are “untimely or are not within OFCCP’s authority,” then the agency would “contact the [complainant] to explain why OFCCP would likely not investigate the matter if a complaint were filed.” The decision on whether or not to ultimately file a complaint would still lie with the complainant, according to the notice.
In addition, OFCCP’s notice stated that the agency is also requesting to change its existing Form CC-4 to ensure consistency with the proposed pre-complaint inquiry.
These changes have the potential to benefit both the complainant and the employer, if they allow for the complainant to have more engagement from OFCCP throughout the process and for OFCCP to take a more rigorous look at whether it has jurisdiction and whether the complaint is timely. The proposed changes add an initial inquiry on the basic allegations to determine whether a complaint is worth pursuing and within the jurisdiction of OFCCP, whereas the current process skips or minimizes this early step.
The agency points out in the notice that the EEOC “has long utilized a two-step intake process” and stated that by implementing this new process, the agency would “improve the efficiency of its complaint intake process.” Comments on the proposal are due by March 20, 2023.
Ogletree Deakins’ Affirmative Action and OFCCP Compliance Practice Group will continue to monitor developments with respect to these and other policy changes and will post updates on the Affirmative Action / OFCCP blog. Important information for employers is also available via the firm’s webinar and podcast programs.