Friday, May 20 2022

On March 31, 2022, the Office of Federal Contract Compliance Programs (OFCCP) issued its second guidance of the year, Directive 2022-02entitled “Effective Compliance Evaluations and Enforcement”.

According to the OFCCP, Directive 2022-02 “clarifies OFCCP’s policies regarding the scheduling of contractors for compliance assessments, including enhancing the agency’s neutral scheduling procedures to achieve a more wide of federal contractors and the elimination of scheduling delays. It also outlines contractors’ obligations to provide timely submission of complete Affirmative Action Programs (AAPs) and supporting data, additional information and access to employees, applicants and other witnesses.”

Notably, the directive supersedes and replaces four directives from the last administration: Directive 2018-06 (“Contractor Recognition Program”), Directive 2018-08 (“Transparency in OFCCP Compliance Activities”), Directive 2020-02 (“ Effectiveness of Conformity Assessments”), and Directive 2021-02 (“Certainty in OFCCP Policies and Practices”). These guidelines were designed to add certainty, efficiency, recognition and transparency to the business community This action clearly shows that the OFCCP in the Biden administration is more focused on protecting workers’ rights than assisting the business community.

Highlights of Directive 2022-02 include the following:

  • Multi-facility compliance reviews

The OFCCP is “[i]implement a coordinated, cross-regional approach to conducting multi-facility compliance reviews. If an employer has multiple establishments that require compliance reviews, “OFCCP will coordinate reviews of policies and templates common to all establishments.” Contractors should note that this means OFCCP investigations will no longer be “siloed” by the establishment of the AAP; in fact, the OFCCP will likely use this coordination effort to expand its investigations into potential discrimination or technical issues.

  • Eliminate delays in conformity assessment planning

The OFCCP will no longer delay the scheduling of contractors for compliance assessments for forty-five days after the publication of a Corporate Programming Announcement List (CSAL). Effective immediately, the OFCCP can begin scheduling compliance assessments as soon as the CSAL is published. We understand that the OFCCP is trying to quickly schedule and close establishments on the “old” CSAL lists so that it can begin scheduling compliance assessments using a new methodology that the agency will release in May or June 2022. The first information suggests that contractors who do not do so in a timely manner certify to the OFCCP Entrepreneur Portal may be more likely to be scheduled for compliance review, but it is unclear how quickly the OFCCP can identify non-compliant contractors and incorporate this information into its scheduling methodology.

  • Extension of the data submission deadline

Once a contractor receives a planning letter and itemized list, they are required to submit all PAAs and itemized list data, including supporting data, within thirty calendar days. The OFCCP will grant extensions “on a case-by-case basis” and only in “extraordinary circumstances,” such as the unexpected departure of a key affirmative action official. Entrepreneurs, beware: time extensions will be difficult to obtain!

  • Additional Data Requests

The OFCCP “reiterates[d] its long-standing policy that the agency may request additional data, follow-up interviews, and/or additional records and information”, either because the contractor’s on-site audit submission is incomplete or that the OFCCP wishes to explore particular issues in greater depth. Directive 2022-02 states that “OFCCP will reasonably tailor the request to the areas of concern, allow contractors a reasonable time to respond, and include the basis of the request”, while also explaining in a footnote that the agency is “not obligated to share statistical analysis during this stage.” If the OFCCP finds additional issues, the “additional requests do not limit the agency’s ability to request additional information or expand the investigation.”

In addition, OFCCP may request PAAs, personnel activity, policy implementation, and supporting documentation from a contractor dating back two years prior to the date the contractor received the planning letter. if the agency “identifies potential indicators of discrimination”. The OFCCP may also request records created after the date of the Programming Letter to determine whether potentially discriminatory practices have continued. We expect that contractors and the OFCCP will have different views on what constitutes “relevant” data in a compliance assessment and that such disputes may result in legal challenges.

The OFCCP has reaffirmed its right to access a contractor’s premises, records, employees, applicants, or other witnesses. Specifically, the OFCCP may request “records, such as personal contact information, personal records, and applications that will [the agency] directly contact employees, former employees, candidates or other witnesses”, without the contractor acting as an intermediary.

In addition, OFCCP will request unredacted contact information for such individuals, including telephone numbers, mailing addresses, email addresses, and social security numbers. In a footnote, the OFCCP explained that these provisions also apply when investigating complaints.

Requests for employee information and personally identifiable information (PII) from the OFCCP are often common in conciliation discussions. Contractors may want to be strategic in providing this information to the agency, including communicating any concerns regarding the production of PII.

  • Representation at interviews

The OFCCP reiterated its policy that a contractor may only have an attorney or other representative present when interviewing senior executives and directors in their managerial capacities who speak on behalf of the contractor or make decisions in the name of it. When the OFCCP interviews non-management personnel, the contractor may not have a representative present, although the employee may request a personal representative. When the OFCCP interviews former employees, the contractor may not have a representative present, with some exceptions. The OFCCP’s historical position on representation in interviews is outlined in its Federal Contractors Compliance Handbook.

The OFCCP clarified that when contractors register and certify compliance annually on the OFCCP Contractor Portal, “they are certifying that they have developed and maintained comprehensive AAPs.” The Entrepreneur Portal opened on March 31, 2022 and most entrepreneurs must certify their compliance by June 30, 2022. Note that the real question on the Entrepreneur Portal is whether entrepreneurs have “developed and maintained programs Affirmative Action” and does not refer to “fulfilling” AAPs or a contractor’s compliance with a global compliance program. We understand that the OFCCP will release more information on this in the near future.

The OFCCP will not review its policies and practices on an annual basis, but will update them “as appropriate”.

Key points to remember

Directive 2022-02 is the latest policy change from a more aggressive and arguably less transparent OFCCP. Already this year, the OFCCP has indicated that it will require contractors to produce internal pay equity audits prepared with the assistance of an attorney, and it has issued a Notice of Proposed Rulemaking that would override parts of a 2020 rule that had established standards and criteria for the OFCCP. investigations and the use of predetermination notices and notices of infringement.

With this new directive, the OFCCP has signaled that it will likely conduct broader, deeper and more comprehensive audits while increasing both time pressure and production loads for contractors. Entrepreneurs can expect to feel the effects of this directive almost immediately. Although the OFCCP directive is only sub-regulatory guidance, entrepreneurs can consider a more proactive approach to complying with affirmative action regulations and engaging with an increasingly active and potentially adversarial OFCCP. during compliance assessments.

Ogletree Deakins’ Affirmative Action and OFCCP Compliance Practices Group will continue to monitor developments regarding Directive 2022-02 and post updates to the Company’s Affirmative Action/OFCCP and Government Contractor blogs. as additional information becomes available. Important information for government contractors is also available through the company’s podcast and webinar programs. The Ogletree Deakins AA/OFCCP Practice Group will host two webinars in the coming weeks on these and other questions.

  • For a detailed discussion of the new Contractor Portal, please join us for a one-hour webinar, “The Curtain Parts! OFCCP Reveals Certification Details on Its Contractor Portal,” on Wednesday, April 20, 2022, at 2:00 p.m. ‘East. To register for this timely program, click here.

  • For a detailed discussion of the OFCCP’s Pay Equity Audit Directive, please join us for a one-hour webinar, “Unpacking OFCCP’s Pay Equity Audits Directive: Considerations in Preparing Non-Privileged Pay Analyses”, on Tuesday, April 26, 2022, at 2:00 a.m. EST. To register for this timely program, click here.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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