In a misguided argument for increased efficiency in audit, the OFCCP issued a new directive on March 31, 2022, to rescind the former Transparency Directive (DIR 2018-08) and three others under the previous administration (DIR-2018-06, DIR 2020-02, and DIR 2021-02).
The OFCCP states: “Specifically, this directive 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. It also 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.”
The OFCCP states that these directives are either out of date or need modification for more efficient compliance reviews and obligations.
With respect to the Transparency Directive (DIR 2018-08), the OFCCP states that the “agency is rescinding DIR 2018-08, Transparency in OFCCP Compliance Activities, to minimize the delay in remedying employment discrimination and positively impact more workers.” For example, under the Directive, the AAP had a data portion and a non-data portion for desk audit submission. It also authorized an automatic 30-day extension for submitting key compensation, employment activity, and other support data. The Directive states that the previous Directive authorized extensions when they were not needed and delayed the efficiency of the agency. In other words, the OFCCP suggests that the previous administration was employer friendly and failed to do its mission. It “promoted” contractors to be dilatory in their obligations, contrary to the law’s intent.
Yet OFCCP under the Trump administration from FY 2017 through FY 2020, recovered approximately $117 million in remedies for protected class members. As a point of comparison, the recoveries in this four-year period exceed the recoveries in the previous nine-year period of FY 2008-2016 combined. OFCCP stated in their budget justification for FY 2023 that the agency recovered nearly $32 million for over 23,000 workers in FY 2021, including over 900 job opportunities for workers. Additionally, through monitoring, the agency recovered over $5.4 million in salary adjustments for nearly 1,300 workers. But the actual number was lower, closer to $26,445,764 as reported by OFCCP for almost 22,000 workers, with many of the settlements completed before the change in administration or of cases in settlement before the change of administrations. Moreover, OFCCP reports for the first six months of the fiscal year 2022, settlements are around $1.2 million.
Further, OFCCP states that incorporated from the DIR 2018-08 many of these procedures are prescribed in the Federal Contractor Compliance Manual (FCCM-the bible for OFCCP compliance reviews) and will continue to follow them, until the FCCM is likely amended. OFCCP also stated that they will continue to engage in regular communication with contractors at each phase of a compliance evaluation, yet a number of audits have gone silent with no information from the agency.
The other Directives that are being rescinded include: DIR 2020-02, Efficiency in Compliance Evaluations, DIR 2018-06, Contractor Recognition Program, which had the purpose of recognizing contractors with high-performing compliance programs and supporting proactive compliance, and DIR 2021-02, Certainty in OFCCP Policies and Practices, which committed the agency to an “ongoing review on at least an annual basis of all of its policies and practices.”
Overall, it appears that the agency is reverting back to the Obama administration’s approach to enforcement and that the contracting community are violators of laws that need to be caught, and investigations are to be treated like criminal investigations. This theme also parallels the theme of the new Blacklisting proposed regulations through the Department of Agriculture. As Alissa Horvitz of Roffman Horvitz in McLean, Virginia stated about the original Blacklisting regulations-which Congress overturned-it “would have required companies to list matters that were far from final, risking the loss of valuable and important contracts and the jobs that went with them over nonfinal judgments." It should be noted that less 2% of all OFCCP audits are discrimination cases.
Another major issue, besides the lack of transparency, is that Contractors will be required to provide detailed personal information, such as telephone numbers, mailing addresses, email addresses, and social security numbers for employees, former employees, and applicants. Contractors will not be permitted to serve as an intermediary for the OFCCP in arranging interviews with employees, etc., and the OFCCP reiterates its long practice of disallowing corporate representatives to attend non-managerial employee interviews.
This Directive, as Cara Crotty of Constangy points out, dismantles the Four Pillars that OFCCP operated under during the previous administration. The Directive is a political action, but not very practical. Although OFCCP states it will follow Title VII law, it said that in the Obama administration and went far off base. Here we go again.
Source: OFCCP, Constangy 3/31/22, SHRM 3/29/17