PUBLICATIONS

On March 31, 2022, OFCCP issued Directive 2022-02, Effective Compliance Evaluations & Enforcement, rescinding four Directives issued during the last Administration:

• DIR 2018-06, Contractor Recognition Program (August 24, 2018);
• DIR 2018-08, Transparency in OFCCP Compliance Activities (September 19, 2018);
• DIR 2020-02, Efficiency in Compliance Evaluations (April 17, 2020); and
• DIR 2021-02, Certainty in OFCCP Policies and Practices (December 11, 2020)

Analyzing Directive 2022-02 will give federal contractors a feeling of déjà vu. While the stated purpose of the rescission of these directives is “[t]o provide transparency on OFCCP’s compliance evaluation policies and expectations for contractors” the new directive does not place even one single obligation on the agency to be transparent. To the contrary, Directive 2022-02 signals a return to aggressive and far-reaching compliance reviews requiring contractors to respond to multiple requests for information with little to no meaningful communication on the part of OFCCP.

Key Changes to the Compliance Evaluation Process

• Directive 2022-02 eliminates the 45-day grace period between the agency’s posting of a new Corporate Scheduling Announcement List (CSAL) and its issuance of scheduling letters to contractors on the new list. This means that contractors on any new CSAL could receive a scheduling letter immediately after release of the list.  

• OFCCP will no longer grant an automatic 30-day extension for contractors to submit their support data in response to the scheduling letter. Contractors must submit a complete response to the scheduling letter (narrative affirmative action plans and support data in response to the itemized listing) within 30 days of receiving the letter, unless there are “extraordinary circumstances” that warrant an extension, such as:

1. Extended medical absence of key personnel;
2. Death in the immediate family of key personnel;
3. Localized or company-specific disaster affecting record retrieval;
4. Unexpected military service absence of key personnel; and
5. Unexpected turnover or departure of key affirmative action official.

• Going forward, OFCCP may add new violations in a Notice of Violation (NOV) that were not included in the Predetermination Notice (PDN), and similarly, the agency may include new allegations in the Show Cause Notice that were not included in the PDN or NOV. In other words, the scope of OFCCP’s claims will be a moving target until the contractor agrees to settle or OFCCP initiates an enforcement action.

• Where OFCCP identifies indicators of discrimination it will be able to expand the temporal scope of the audit to request additional data going back two years from the date of the scheduling letter as well as forward from the date of the scheduling letter to the present.  

• Where a compliance review proceeds to an onsite investigation, OFCCP will no longer permit contractors to schedule interviews with non-management employees. To protect current and former employees and applicants from retaliation, OFCCP will independently schedule all non-management interviews. Contractors will be required to provide the Agency personal telephone numbers, home addresses, email addresses, and social security numbers for current and former employees and applicants. OFCCP will then select who to interview and schedule the interview. There is no guarantee that OFCCP will schedule employee interviews during normal work hours. This is particularly concerning, as the agency has not addressed the potential wage and hour issues arising from requiring non-exempt employees to be interviewed outside of their normal work hours.

OFCCP has stated that the new Directive is intended to increase efficiencies and move audits to closure more quickly than in the prior Administration. Unfortunately, it seems unlikely that 2022-02 will result in any efficiencies on the part of OFCCP. To the contrary, the Directive clearly requires compliance officers to conduct expansive compliance reviews in which the alleged violations are a moving target. There is no indication that OFCCP intends to implement any internal deadlines for compliance officers to complete the various stages of a compliance review or any guidance on which indicators to pursue and which indicators are so minor that they should not be pursued. It seems the only “increased efficiencies” involve the removal of very reasonable grace periods and extensions contractors could request in order to thoroughly review their data and information prior to submission to the agency; nothing has yet been implemented that would limit the agency from conducting years-long audits.

The contractor community saw very little activity from OFCCP in the first year of the Biden Administration. With the flurry of activity over the last few weeks and the opening of the portal for contractor certification, that appears to be rapidly changing. If you have questions about Directive 2022-02, or any of the recent OFCCP activity, please contact Consuela Pinto, cpinto@fordharrison.com, Nancy Holt, nholt@fordharrison.com, or the FordHarrison attorney with whom you work.