New Directives Announced by OFCCP

The OFCCP announced three new directives on April 17, 2020. These directives allow the agency to increase efficiency in compliance evaluations, help contractors resolve alleged violations through a mediation program, and provide a framework for interacting with the ombudsman.

• Directive 2020-02: Efficiency in Compliance Evaluations
• Directive 2020-03: Pre-Referral Mediation Program
• Directive 2020-04: Ombuds Service Supplement

Directive 2020-02: Efficiency in Compliance Evaluations

This directive builds upon Directive 2018-08, Transparency in OFCCP Compliance Activities, and Directive 2019-02, Early Resolution Procedures, and hopes to continue the trend towards shorter duration compliance evaluations. Additionally, OFCCP defines aged cases as audits that have not resulted in an administrative closure, conciliation agreement, or referral to the Office of the Solicitor within two years of the scheduling letter and sets a goal that these cases account for less than 15% of total caseload. The agency sets a goal to complete evaluations within 180 days in the absence of preliminary findings of discrimination, or to issue a Predetermination Notice within one year from the issuance of the scheduling letter. The goal assumes that the contractor will extend full cooperation, make timely submissions of all requested information, and provide access to interviewees and premises.

A new Compliance Management System will send monthly status reports to OFCCP National Office leadership regarding open compliance evaluations and aged cases. Compliance Officers are expected to provide a status update to contractors every 30 days.

Contractors may request the Regional Director to address the reasons for delay in closing a compliance evaluation where the compliance evaluation has been open for a year without the issuance of a PDN or for two years without a referral to the Office of the Solicitor. If the Regional Director fails to address the delay, the Contractor may petition the Director with a copy to the Ombudsman. Determination will be made in consultation with the Deputy Director, Director of Enforcement, and Regional Director on how to proceed.

This directive also allows the Director to shorten the deadlines based on annual review of the policies.

Directive 2020-03: Pre-Referral Mediation Program

This pre-referral mediation program allows the contractor and the OFCCP to enter into talks after the issuance of a Show Cause Notice (SCN) to the contractor but prior to referral to Solicitor of Labor for enforcement.

OFCCP notes that it reserves the right to suggest mediation at other stages of the compliance evaluation or to proceed directly to an enforcement recommendation without issuing a SCN in rare cases or exceptional circumstances.

The directive outlines the roles and responsibilities of the national office, regional directors, and Regional Office of the Solicitor in the pre-referral mediation program. Among other things, the policy and procedures section provides guidance on selecting a mediator, when to share mediation submission materials, and determine timeframe to conclude mediation. Mediators may be selected from the Federal Mediation and Conciliation Service (FMCS), other qualified federally approved mediators, the OFCCP Ombudsman, or other qualified individual proposed by the contractor. OFCCP plans to develop a mediator list using the above-mentioned sources. 

Directive 2020-04: Ombuds Service Supplement

Directive 2018-09 established OFCCP’s Ombud Service in the national office with plans to hire an ombudsman to design, implement, and execute an Ombuds Service. The Ombudsman is now in place, and Directive 2020-04 provides an Ombud Service Protocol document that is a supplement to Directive 2018-09 and outlines the principles of the Ombuds Service. The Protocol provides “further clarification on several issues, including the expansion of the role of the Ombudsman, who will not conduct compliance evaluations, complaint investigations or participate in conciliation agreement negotiations, other than to provide neutral facilitation services.” The Ombud Service Protocol may be accessed here.