OFCCP Issues New Case Processing Directive and Rescinds Popular Transparency Directives Issued by Prior Administration

Yesterday, OFCCP issued a new directive, Dir-2022-02, which updates agency compliance evaluation processes. The Directive rescinds four directives issued during the prior Administration as part of former OFCCP Director Craig Leen’s “CERT” initiative, which focused on providing contractors with certainty, efficiency, recognition and transparency during the compliance review process. The new directive is effective immediately.

Importantly, the new directive rescinds the agency’s prior policy of providing contractors with an automatic 30-day extension to provide the data portion of their AAP when scheduled for an audit. Going forward, contractors must respond to all portions of the OFCCP’s Scheduling Letter and Itemized Listing within 30 calendar days, unless a contractor can show “extraordinary circumstances.” The Directive provides the following narrow examples of such circumstances:

1. Extended medical absences of key personnel;
2. Death in the immediate family of key personnel;
3. Localized or company-specific disaster affecting records retrieval such as a flood, fire, or computer virus;
4. Unexpected military service absence of key personnel; and
5. Unexpected turnover or departure of key affirmative action official

The Directive also modifies the OFCCP’s compliance review scheduling process. Although the agency will continue to post a list of scheduled contractors on its website, it will “no longer delay scheduling contractors for 45 days after the issuance” of this advance notice list. This 45-day notice period has been a key policy for contractors, allowing contractors time to prepare for an upcoming audit. Going forward, OFCCP may schedule contractors on the same day a new scheduling list is released. The Directive also notes that OFCCP is “enhancing its neutral scheduling procedures” to identify contractors with “greater risk factors for noncompliance” but does not provide further detail about how the agency is revising its scheduling protocols.

OFCCP’s new directive also outlines the agency’s expectations about data exchange during a compliance review. While stating that the OFCCP will provide contractors with the “basis” for any additional data requests, in a footnote, the agency makes clear that this will not “share the statistical analysis during this stage (e.g., standard deviation, b-coefficient, etc.)” until a pre-determination notice is issued. In line with our experience in recent audits, the Directive emphasizes that the agency may request personal contact information for employees, former employees, applicants and other witnesses because “empowering and listening to workers to understand their experiences is an important priority for OFCCP.”

In general, the tone of the new directive and the rescission of several contractor-friendly notice and extension policies suggest contractors will face more scrutiny and receive less information from OFCCP during this administration. When coupled with the new annual AAP certification requirement on OFCCP’s Contractor Portal, all contractors should focus on timely preparing their annual affirmative action plans so t those plans are ready to submit to OFCCP during a compliance review. Contractors should also take steps to actively self-audit their compliance – as compliance with the affirmative action requirement to conduct an in-depth review of the total employment process has been a significant focus in recent audits.