The Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has had a surprising 2022 so far with updating old and proposing new policies and regulations. The changes are establishing the office toward more aggressive monitoring of government contractors.
Updates and Changes
Recently, Directive 2022-02 (Effective Compliance Evaluations and Enforcement) was released which will institute big changes to OFCCP’s audit and enforcement processes, but that’s not all. The office’s issuance of the Directive is the cherry on top of a few other directives issued, including the Pay Equity Directive and regulations that would rescind features of the Pending Revision of the Predetermination Notice Rule.
Here’s the skinny on each:
- The Pay Equity Directive: OFCCP’s purpose for this one is to “provide guidance on how OFCCP will evaluate federal contractors’ compliance with pay equity audit obligations and clarify OFCCP’s authority to access and review pay equity audits” under federal contractor regulations.
- Directive 2022-02: The “Effective Compliance Evaluations and Enforcement” Directive repeals four directives from the former administration that gave contractors more notice of investigations from OFCCP and bigger insight into how the office conducts their investigations. These included four principles of OFCCP’s Certainty, Efficiency, Recognition, and Transparency (CERT) program. The new directive replaces that with a process that might cause defense contractors some anxiety. Directive 2022-02 specifically says, it “clarifies OFCCP’s policies regarding scheduling of contractors for compliance evaluations, including enhancing the agency’s neutral scheduling procedures to reach a broader universe of federal contractors and eliminating delays in scheduling” and “describes contractors’ obligations to provide timely submission of complete Affirmative Action Programs (AAPs) and support data, supplemental information, and access to employees, applicants, and other witnesses.”
- Revision of the Predetermination Notice Rule: OFCCP implemented the Predetermination Notice (or PDN Rule) that managed its review processes and created legal guidelines for how it would adjudicate discrimination for litigation. The three features codify how OFCCP determines if an audit should move to the next step, if OFCCP will disclose their processes on how they arrived at that conclusion, and to not rely on one method for if they find discriminating practices. This revision would redact the last two pieces, giving OFCCP the autonomy to not disclose its statistical data practices.
What does this mean for cleared recruiters?
These directives show how the current Administration is taking affirmative action compliance more seriously. While government contractors are expected to be in compliance all of the time, organizations will not have advance notice of investigations to get their ducks in a row.
So, Human Resources / Recruiting departments will need all documentation in response to an OFCCP investigation in place from the start. Additionally, affirmative action programs for government contractors and data required for an OFCCP audit must be easily accessible. Contractors needing to take the steps to ensure they are compliant should consider implementing practices sooner than later.
- Make sure your job descriptions are free of bias
- Ensure your hiring data is thorough and rejections for applicants are notated
- Be sure that your outreach is comprehensive and that you’re meeting the diversity requirements
- Understand the policy attached to affirmative action plans
With less notice of investigations and little time to respond to audits, contractors need to do an internal assessment of themselves stat. More changes are coming to the office’s scheduling, so look out HR departments…it’s going to be a bumpy road.
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