OFCCP Has Submitted Proposed Regulation For Issuance of Pre-Determination Notices

OFCCP submitted a proposed regulation which would codify Directive 2018-01-Use of Predetermination Notices (PDN) last week.  This regulation would require OFCCP to issue a Predetermination Notice (PDN) in every compliance review that would summarize OFCCP’s preliminary “discrimination” findings before issuing a Notice of Violation (NOV).

PDNs can be issued after they are approved by the Solicitor’s Office and the National Office of OFCCP.  They provide transparency to contractors and can facilitate resolution of alleged violations prior to OFCCP issuing a NOV.

The proposed regulation is not currently available to the public but can be tracked through the Office of Information and Regulatory Affairs (OIRA):  RIN 1250-AA10.  As such, we don’t know all the details the proposal will include.

OFCCP issued Directive 2018-01 to provide interim guidance regarding PDNs in February 2018.  This Directive states that rather than leaving the issuance of a PDN to the discretion of regional and district OFCCP offices, OFCCP must issue PDNs in some cases.  The Directive also gives oversight of regional and district office discrimination allegations to the regional Office of the Solicitor and the OFCCP National Office through a mandatory pre-issuance review of all PDNs.

Furthermore, President Trump issued Executive Order 13892 – Promoting the Rule of Law Through Improved Agency Guidance Documents in October 2019.  This makes it more difficult for OFCCP and other agencies to issue guidance documents without giving the public a chance to review and comment.  The impetus behind the current proposal is likely OFCCP’s efforts to comply with this Executive Order while also providing transparency and certainty in enforcement.

Stay tuned for more updates once OFCCP publishes the proposed regulations.