OFCCP Directive Accelerates Compliance Reviews and Expands Entrepreneurs’ Obligation to Produce Information | Davis Wright Tremaine LLP

The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) issued its second directive of 2022 (DIR 2022-02) to expedite compliance reviews and increase the burden on contractors to produce documents earlier in the process compliance review. This directive will put more pressure on contractors subject to a compliance review to gather and produce records quickly.

Now more than ever, contractors would be well advised to keep their affirmative action programs up to date in case the contractor later becomes the target of a compliance review.

The OFCCP will no longer delay planning contractors for 45 days after the publication of the CSAL

Prior to Directive 2022-02, the OFCCP published the Business Planning Announcement List (CSAL) to notify entrepreneurs that they are included in the OFCCP planning list. Then, in accordance with Directive 2018-08, the OFCCP would automatically delay planning with contractors for a period of 45 days. The new directive provides that “OFCCP may begin programming contractors as soon as the CSAL is published.”

The most recent OFCCP guidance removes this automatic 45-day time limit because the previous policy was “against OFCCP’s goal of conducting comprehensive compliance evaluations that promote consistent accountability and submission the required information in a timely manner”. In other words, the OFCCP expects contractors to comply with its regulations at the time of publication of the CSAL. And, it appears the OFCCP’s goal may be to eliminate the scenario where contractors begin their compliance efforts within the 45-day window after the CSAL is issued.

Upon receipt of a planning letter, a Covered Contractor has 30 days to produce documents and data

Under the new guidance, a covered contractor must file all affirmative action programs and itemized list data within 30 days of receiving a planning letter from the OFCCP. In the past, OFCCP compliance officers had some latitude to grant extensions of this 30-day deadline. However, the most recent directive specifies that the OFCCP can only grant an extension “for extraordinary circumstances”.

These circumstances include, but are not limited to:

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

The OFCCP may request a wider range of additional information and data

The guideline warns contractors that if a contractor’s submission is incomplete or if the OFCCP identifies issues that warrant further analysis, it may likely request additional information and data. Where the OFCCP identifies potential indicators of discrimination in employment practices, it may request supporting documentation covering a period beginning two years prior to the date the contractor received the scheduling letter.

In addition, the OFCCP may also request to review employee records, such as employment data and/or compensation data created after the date of the scheduling letter. OFCCP’s purpose in requesting information about the post-planning letter is to determine whether the employer’s (alleged) non-compliant practices have ended (meaning that OFCCP cannot take any corrective action). enforcement) or whether the practice has continued (in which case the OFCCP may take enforcement action).

The OFCCP may request important employee information

To facilitate thorough investigations, OFCCP may request important employee information, including personal contact information, personnel records, and applications that will allow OFCCP to contact employees, former employees, applicants, or other witnesses. During its investigation, OFCCP may require contractors to provide the agency with unredacted contact information, such as phone numbers, mailing addresses, email addresses, and even security numbers. social.

The directive leaves unchanged the policy of the OFCCP regarding the representation of an employee by an attorney during an interview with the OFCCP. When the OFCCP conducts interviews with senior executives and directors in their management capacity who speak or make decisions on behalf of the company, the entrepreneur may have an attorney or other representative present. However, when the OFCCP interviews non-managerial personnel, the contractor is not entitled to have a representative present.

Covered contractors must be proactive in updating and maintaining their affirmative action programs

Since the new directive provides contractors with less notice before an audit, and since the directive accelerates and extends the burden on contractors to produce documents, covered contractors are well advised to prepare their annual affirmative action programs on a regular and timely.

In the past, contractors appearing on the CSAL may have had time to prepare compliant affirmative action program documents late. But under the new regime and accelerated timelines, unprepared and underprepared contractors can find it very difficult to demonstrate compliance during an OFCCP audit.

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