OFCCP Moves to Rescind Conciliation Rules Issued During Trump Administration – Agency Claims Rules Were “Rigid” and “Harm Workers” After Being In Place For Just Over A Year

The Office of Federal Contract Compliance Programs (OFCCP) recently issued a proposed rule to rescind case processing requirements put into place at the end of the Trump Administration. According to OFCCP Director Jenny Yang, “The 2020 rule unduly constrained OFCCP’s broad enforcement discretion. Its imposition of formulaic proof standards to be applied to every case harms workers by undermining OFCCP’s ability to effectively bring the full range of cases within its authority and remove barriers to equal employment opportunity.”

Contractors welcomed the 2020 standards to bring more consistency, rigorous analysis and transparency to the OFCCP compliance review process, after years of complaints that the agency engaged in overzealous enforcement tactics during the conciliation process. See U.S. Chamber of Commerce’s Fall 2017 report, “Office of Federal Contract Compliance Programs, Right Mission, Wrong Tactics: Recommendations for Reform”. While not providing information on how many times the procedures have been used since 2020, OFCCP claims the 2020 rule – in place for just over a year - “resulted in time-consuming disputes with contractors over the application of the new requirements.” In keeping with this Administration’s focus on retaliation, OFCCP also argues that disclosing anecdotal evidence early in the process may “chill” a worker’s willingness to participate in an investigation and result in retaliation by employers.

OFCCP’s current proposal would retain the requirement that the agency issue a Predetermination Notice (PDN) in most cases and would continue to allow for early resolution through waiver of the requirements to issue a PDN or Notice of Violation. However, the Biden OFCCP is proposing to remove the standards for the type of statistical and non-statistical evidence required for a discrimination finding. The current proposal would also remove the requirement that OFCCP consider whether any statistical disparity be “practically significant.” Among other changes, the proposal would reduce the time contractors have to respond to the agency’s preliminary findings back to just 15 calendar days and remove any requirement that the agency provide “the model and variables used in the agency's statistical analysis and an explanation for any variable that was excluded from the statistical analysis” as part of the conciliation process.

OFCCP is accepting comments on the proposed rules through April 21, 2022. Comments can be filed online by contractors and other interested parties.