The Office of Federal Contract Compliance Programs (OFCCP) has announced a change in policy that will allow federal contractors an opportunity to rebut preliminary findings of discrimination before the agency issues an official Notice of Violation. Directive 2018-01 instructs OFCCP staff to always give federal contractors a Predetermination Notice if the results of an affirmative action audit lead the agency to believe the company committed any violations, including employment discrimination. The company then has 15 calendar days from receipt of the notice to provide an explanation. The OFCCP will take the company’s response into account before deciding whether to move forward with a Notice of Violation. The policy takes effect immediately.
Tips: In recent years, OFCCP district and regional offices had discretion on whether to issue a Predetermination Notice, and generally only did so for systemic discrimination cases (which tend to be complex). The result was sometimes a “black box” approach to audits, in which contractors didn’t know what the agency was focusing on until being presented with an official Notice of Violation. This was particularly frustrating in cases where a factual error contributed to the findings of a violation. This new directive should improve the agency’s process of reaching a conclusion following an affirmative action audit. This directive is the first to be issued under the leadership of Ondray T. Harris, who was appointed as OFCCP’s Director in December 2017. Early indications are that he will steer the agency toward greater transparency, more compliance assistance, and higher efficiency. Vigilant will keep members informed of any new developments.