The Office of Federal Contract Compliance Programs (OFCCP) issued a new directive, titled “Effective Compliance Evaluations and Enforcement” (the “Directive”). According to OFCCP, the Directive’s purpose is to “provide transparency on OFCCP’s compliance evaluation policies and expectations for contractors.” The Directive rescinds four prior directives from the Donald Trump administration that were designed to add certainty, efficiency, recognition, and transparency to the compliance review process for federal contractors and subcontractors. Effectively, the new Directive increases the burden on contractors to produce records earlier in the compliance review process by:
- Reducing the time contractors have to respond to a compliance review by discontinuing the 45-day waiting period after the release of the Corporate Scheduling Announcement List.
- Eliminating the automatic 30-day extension for the submission of key compensation, employment activity, and other support data that was available under a prior directive. OFCCP will grant extensions on a “case-by-case basis” in the event of “extraordinary circumstances.”
- Enhancing its scheduling procedures for selecting 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.”
- Requesting to examine records, including employment activity data such as hiring and compensation data created after the date of the Scheduling Letter.
- Increasing OFCCP’s ability to directly contact employees, applicants and other witnesses by requiring contractors to disclose their personal contact information and personnel files.
- Clarifying that when contractors register and annually certify compliance in OFCCP’s Contractor Portal, “they are certifying that they have developed and maintained complete Affirmative Action Programs (AAPs).” Please see our prior client advisory for more information about the new annual certification process.
In sum, the new Directive signals OFCCP’s intention to return to more comprehensive compliance reviews.
OFCCP just issued its 2022 Corporate Scheduling Announcement List, detailing which contractors have been selected to undergo a compliance evaluation in 2022. Contractors should review this list and begin preparation for the compliance evaluation if they have been selected.