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Nov 19, 2020

OFCCP busier than ever as 2020 draws to a close

Affirmative ActionHarassment & Discrimination 

Federal contractors, take note: The Office of Federal Contract Compliance Programs (OFCCP) isn't slowing down in publishing new regulatory and enforcement initiatives, in addition to its ongoing affirmative action enforcement work. Recent agency actions include:

  • Publishing a final regulation capturing the process for resolving allegations of discrimination in an affirmative action audit. The agency will take into account both quantitative and qualitative evidence of discrimination in reaching a conclusion. It may start with either a Predetermination Notice (inviting the contractor to explain or address the agency's preliminary findings) or a Notice of Violation (stating the agency's conclusions and inviting the contractor to enter into a conciliation agreement). For both notices, the new regulations require the agency to explain how it reached its conclusions. Contractors may also waive these procedures and voluntarily enter into an expedited conciliation agreement. The new rules take effect on December 10, 2020 (85 Fed Reg 71553, Nov. 10, 2020). Prognosis under a new administration: Likely to be in effect for a while, because adopting formal regulations is a lengthy, difficult process.
  • Publishing a formal request for information, asking the public to submit examples of workplace training that violates President Trump's recent Executive Order 13950 (Combating Race and Sex Stereotyping). The OFCCP has developed a webpage for the order, including FAQs and a complaint hotline. OFCCP says the primary purpose of the request for information is to develop compliance assistance materials (85 Fed Reg 67375, Oct. 22, 2020). Prognosis under a new administration: Likely to be immediately jettisoned, along with Executive Order 13950.
  • Publishing a new Technical Assistance Guide for Supply and Service Contractors. This informal guide has been updated to bring it into line with current affirmative action regulations. It's long (over 150 pages, including Appendices), but provides a useful resource capturing the OFCCP's perspectives on how its regulations translate into requirements for federal contractors. Prognosis under a new administration: Likely to be in place for a while, since it's fairly generic, but eventually will be updated as new developments occur.

Tips: The current Director of the OFCCP, Craig Leen, is a political appointee. Traditionally these appointees submit their resignations before a change in administration. Typically it then takes six to nine months for a new OFCCP director to be appointed, and then another six months or so for that person to begin putting their own stamp on the agency. So, other than the likely elimination of Executive Order 13950, the agency will be somewhat on autopilot, pursuing the same enforcement objectives currently in effect today. That means the agency will continue with its “bread and butter” enforcement of discrimination in hiring and compensation, plus more recent initiatives to pursue focused reviews of promotions and accommodations. Questions? Contact your Vigilant affirmative action representative. If your company holds federal contracts or subcontracts, Vigilant can prepare your annual affirmative action plans and assist with OFCCP audits for a reasonable annual fee.

This website presents general information in nontechnical language. This information is not legal advice. Before applying this information to a specific management decision, consult legal counsel.