10 December 2018

Naughty or Nice? OFCCP Issues Three New Directives

Welcome to another Two Minute Update.  The OFCCP recently issued three new policy directives.

The first one is aimed at clarifying the Agency’s compliance review procedures.  This rescinds an Obama era directive that replaced shortened desk audits with much more “deep dive” full audits.  Instead, OFCCP’s Compliance Manual will be followed moving forward.  The stated goal is to maximize Agency limited resources by shortening desk audits but increasing the number of contractors being selected.  What will this mean?  Far more contractors being targeted– perhaps 3 times as many – but audits that are shorter in length.

The second is for contractors with multiple facilities.  It creates a process to resolve compliance evaluation issues globally when OFCCP believes a violation at one establishment may also exist at a contractor’s other locations.  The stated goals of the second directive are to resolve evaluations at the earliest stage possible with corporate-wide compliance, help contractors that have centralized HR achieve broader nondiscrimination, and shorten the length of audits.  The reward for contractors allowing OFCCP to assess a similar violation at other facilities, is that the Agency will not schedule a new audit for 5 years from the date of the corporate-wide corrective action.

The third is to create a process to issue opinion letters and enhance OFCCP’s Help Desk.  Other DOL agencies have long issued opinion letters.  Now OFCCP will too, and the agency wants to improve its assistance by making Help Desk responses searchable on OFCCP’s website.  OFCCP also plans to incorporate its use of opinion letters as part of its guidance to the public to offer more certainty about how it exercises its authority.  This is akin to what we see with Wage/Hour and FMLA opinion letters.

As a practical matter, these new directives indicate a continued shift towards Agency transparency and a stated intent to more fully partner with Federal Contractors.

Stay tuned for additional developments in the New Year.