OFCCP Proposes Rulemaking to Rescind Pre-Enforcement Procedures

Rescinding the rule will eliminate transparency and clarity for contractors.

On March 21, 2022, the OFCCP announced that it proposed rulemaking to review the final rule, “Nondiscrimination Obligations of Federal Contractors and Subcontractors: Procedures to Resolve Potential Employment Discrimination,” which went into effect on December 10, 2020. The rule codified the Predetermination Notice (PDN) and the Notice of Violation (NOV) which are presented to contractors towards the end of a compliance evaluation identifying areas of noncompliance.

OFCCP seeks to eliminate the Trump administration’s rigid evidentiary requirements and go back to the days when the agency would provide contractors with little or no information regarding the reasons for its findings in the PDN and NOV stages of the compliance evaluation process. OFCCP claims that the 2020 rule “imposed inflexible evidentiary requirements early in the compliance evaluation process and attempted to codify complex evidentiary definitions for “qualitative” and “quantitative” evidence and other standards. The 2020 rule imposed rigid evidentiary standards and definitions that impede OFCCP’s ability to provide contractors with early notification of indicators of discrimination.”

Director Jenny R. Yang stated, “These proposed modifications would restore flexibility to OFCCP’s procedures, promote efficiency in resolving cases, strengthen enforcement and promote alignment of the standards governing our procedures with Title VII.” However, what was not stated was that contractors will no longer have clarity as to the specific reasons for the citations issued by the agency which will slow down the conciliation process. Prior to the 2020 regulations, contractors received little information regarding the basis for the agency’s findings at the PDN and NOV stages.

Additionally, OFCCP is proposing to return to the PDN response period from 30 days to a 15-calendar day period that was in effect prior to the 2020 regulations. Contractors will still be able to bypass the PDN and NOV process and engage in expedited conciliation.

Comments on the proposed regulations are due no later than April 21, 2022.

OutSolve's Take

The 2020 regulations required the agency to present “quantitative evidence of discrimination that has practical significance.” OFCCP believes that the 2020 regulation “mandate overly particularized and confusing evidentiary definitions that impeded OFCCP’s ability to tailor the pre-enforcement process to specific facts and circumstances of each case, delay information exchange with contractors.” We believe that thinking contradicts Directive 2018-08 whose purpose was ‘Transparency in OFCCP Compliance Activities’ since contractors will receive less evidence to support OFCCP’s allegations and have less time to respond to them. Transparency was one of the four pillars (Transparency, Certainty, Efficiency, Recognition) that the prior OFCCP Director, Craig Leen, had outlined as initiatives for the agency during his tenure. We guess that the agency has given up on transparency and perhaps other aspects of the prior Director’s initiatives thinking that they will discover more employment discrimination and that contractors will concede to their demands.