On 31st March 2022 U.S Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) issued a new Directive 2022-02. OFCCP is responsible for ensuring that employers doing business with the Federal government comply with the laws and regulations requiring non-discrimination. The sole purpose of this directive is to provide “clarity and transparency on OFCCP’s compliance evaluation policies and expectations for contractors”.
Changes resulting from new directives:
Scheduling change:
- OFCCP is enhancing its neutral scheduling procedures for selecting federal contractors for compliance evaluations to reach a broader universe of contractors and subcontractors and to identify those with greater risk factors for noncompliance with nondiscrimination and affirmative action requirements.
- OFCCP will continue to provide information about its scheduling methodology to explain how the agency neutrally selects contractors for a compliance evaluation.
OFCCP will continue to post a CSAL to notify contractors that they are included in OFCCP’s scheduling list. To promote efficiency, OFCCP will no longer delay scheduling contractors for 45 days after the issuance of a CSAL. As of the effective date of this directive, OFCCP may begin scheduling contractors upon the publication of the CSAL.
Compliance Evaluation and Strategic Enforcement Objectives
As part of its strategic enforcement, OFCCP will strengthen the effectiveness of compliance evaluations and promote greater contractor compliance by:
- Conducting comprehensive compliance evaluations that bring consistent accountability and avoid delay through timely submission of required information.
- Federal contractors actively self-audit employment systems to identify and resolve problems in their employment practices.
- Promoting regular and open communication to ensure contractors understand the nature of any concerns identified and to facilitate a prompt and successful resolution of violations and completion of reviews. This includes transparent communication by all parties at each stage of the compliance evaluation, including but not limited to, the scheduling, pre-desk audit, desk audit, pre-onsite, offsite analysis, and conciliation phases.
Timely Desk Audit Submission:
Supply and service contractors are required to develop an AAP within 120 days of the commencement of a covered federal contract and to update that AAP on an annual basis. Further, supply and service contractors must annually certify that they have developed and maintained complete AAPs in compliance with OFCCP’s requirements through its Contractor Portal.
Access to Employees, Applicants and Other Witnesses:
The importance of contractors providing access to their premises and records relevant to OFCCP’s investigation. This includes records, such as personal contact information, personnel files, and applications that will enable OFCCP to contact employees, former employees, applicants, or other witnesses. Empowering and listening to workers to understand their experiences is an important priority for OFCCP. It may directly contact these individuals without the contractor serving as an intermediary. During these investigations, OFCCP will request that contractors provide the agency with contact information such as telephone numbers, mailing addresses, email addresses, and social security numbers for these individuals. OFCCP will take all necessary precautions to safeguard the confidentiality of the information, as required by its regulations and other applicable federal law. Contractors should be aware that actions by a contractor to limit an employee, applicant, or other witness’ ability to assist or participate in OFCCP’s compliance evaluation may constitute intimidation or interference.
Requests for Supplemental Information and Data:
OFCC also request to examine records, including employment activity data like hiring and compensation data, created after the date of scheduling letter. OFCCP will request wage and benefits data and will consider information the contractor provides on mitigation, such as employee turnover data, for the purpose of accurately estimating make-whole relief. The exchange of this data will expedite the conciliation process.