OFCCP Issues Directive On Fourth Agency Pillar Of Certainty

Jackson Lewis P.C.
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OFCCP issued today the last of a series of Directives aimed at defining the Agency’s enforcement relationship with federal contractors – this Directive 2021-02 focuses on providing federal contractors “Certainty” when interacting with the Agency.

Since he took the leadership role, OFCCP Director Craig Leen has focused on providing federal contractors with “four pillars” on which they can rely in interactions with OFCCP:  Certainty, Efficiency, Recognition and Transparency – the “CERT” principles.

The CERT principles commit OFCCP to certainty in the policies and practices it enforces, efficiency in the conduct of its compliance evaluations, recognition of top-performing stakeholders and best practices, and transparency in information sharing and engagement with the stakeholder community.

According to the terms of this Directive, it builds on other publications but specifically:

  • Commits to ongoing Agency reviews of policies and enforcement practices “to ensure they are clear and certain to the stakeholder community, and to provide for a process by which a member of the stakeholder community can seek clarification or disclosure of a policy or practice to ensure greater certainty.”
  • Extends the enforcement moratorium applicable to federal contractors participating in Veterans Administration Health Benefit Provider (VAHBP) agreements.  The moratorium is extended by  two years, until May 7, 2023.  The ultimate goal, according to the Directive, is to give OFCCP time to “consider whether a national interest exemption for VAHBP providers is warranted” – similar to the TRICARE determination.

Also, according to the new Directive, it builds specifically upon, reaffirms and incorporates the 2018 publication:  What Federal Contractors Can Expect.  In that document, OFCCP committed to these significant actions:

  • Access to Accurate Compliance Assistance Materials
  • Timely Responses to Compliance Assistance Questions
  • Opportunities to Provide Meaningful Feedback and Collaborate
  • Professional Conduct by OFCCP’s Compliance Staff
  • Neutral Scheduling of Compliance Evaluations
  • Reasonable Opportunity to Discuss Compliance Evaluation Concerns
  • Timely and Efficient Progress of Compliance Evaluations
  • Confidentiality

While directives do not have the force of law and, therefore, can be rescinded, it may be difficult for any subsequent OFCCP administration to do so given the points outlined above are reasonable, and designed to further OFCCP’s agenda and objectives.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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