On November 30, the OFCCP announced the release of three new policy directives. In this article we’ll summarize a few key takeaways from each.
Adds two new approaches to increase compliance assistance: searchable online help desk and fact-specific opinion letters. Both of these efforts are aimed at providing contractors and other key stakeholders with clear and reliable guidance.
These procedures are primarily aimed at contractors with multiple establishments. Three types of violations are identified in the directive: non-material violations, material violations: non-discrimination, and material violations: discrimination. Non-material violations are to be remedied during the desk audit and referenced in a closure letter.
When OFCCP finds material violations without discrimination, the contractor may quickly enter into an Early Resolution Conciliation Agreement (ERCA). In this case, all of the contractors’ establishments, or a subset, would be part of the conciliation reporting and the originally audited establishment would not be scheduled for a compliance evaluation for 5 years. Other establishments, even those covered under the ERCA, would still be subject to scheduling.
If OFCCP finds evidence of material violations with discrimination, this directive allows for a collaborative process to reach conciliation quickly. Interviews of essential personnel would be expedited and primarily conducted by telephone or videoconference as opposed to an on-site visit. Contractors would have the opportunity to provide documentation to defend and explain their practices. If evidence of discrimination persists, contractors can use the ERP to make company-wide corrective action. On top of any financial remedies, semi- annual reporting for five years would be required under an ERCA. In this case, however, ALL establishments covered by the ERCA would be excluded from audit scheduling for the five year reporting period.
This directive rescinds the Active Case Enforcement directive in favor of more recent directives and procedures outlined in the federal contract compliance manual (FCCM). It notes that while ACE had material compliance impact, “the number of OFCCP compliance reviews gradually declined and overall processing time increased under ACE.” This can be seen in the decrease in compliance reviews in the last few years.
This directive also gives the clearest indicator yet that the current leadership at OFCCP intends to increase the number of audits they conduct: “By increasing the number of compliance evaluations, shortening desk audits and conciliating issues more efficiently, OFCCP is maximizing its resources by proceeding with the most effective aspects of ACM and ACE.”