OFCCP Seeks to Reduce Delays, Introduces Mediation Program

Orrick - Equal Pay Pulse

Orrick - Equal Pay Pulse

OFCCP has announced the issuance of three new directives intended “to increase accountability and efficiency” and “to maximize the effectiveness of compliance assistance resources.”

Efficiency in Compliance Evaluations

First, Directive 2020-02 sets forth specific procedures intended to allow more expeditious resolution of compliance evaluations and violations. Among other things, the directive provides that OFCCP’s Compliance Management System send regular reminders to OFCCP’s compliance officers, regional directors, and directors regarding the status of open compliance evaluations.

The directive also provides a process for employers to request that OFCCP conduct a review of an open compliance evaluation to determine and address any reasons for a delay. To initiate the process, the contractor must have generally provided all information requested by OFCCP, and the compliance evaluation must have either (1) remained open for one year from the date the contractor received the scheduling letter without issuance of a Predetermination Notice (“PDN”) , or (2) remained open for two years without referral to the Office of the Solicitor. The employer must first raise the issue with the appropriate regional director. If the issue is not resolved, the employer may then send the request to the OFCCP Director with a copy to the OFCCP Ombudsman. The Ombudsman will then review the request and report findings to the OFCCP Director, who will make a determination in consultation with other directors as to how to proceed.

Pre-Referral Mediation Program

Second, Directive 2020-03, establishes a program to resolve findings of discrimination after a Show Cause Notice (“SCN”) has been issued but prior to referral to the Office of the Solicitor for enforcement. Under the program, OFCCP will generally offer mediation in cases where it has issued an SCN for a discrimination violation. The program provides two exceptions. OFCCP may refer a matter directly to the Office of the Solicitor: (1) In “exceptional circumstances,” and (2) following the issuance of an access SCN due to the expedited and interlocutory nature of access cases.

Directive 2020-03 also establishes procedures for selecting a mediator, handling pre-mediation submissions, and structuring the mediation session. Importantly, OFCCP also has the ability to suggest mediation at other stages of a compliance evaluation, as it deems appropriate.

Ombuds Service Supplement

Finally, Directive 2020-04 supplements an earlier directive that created the Ombuds Service, by issuing the Ombuds Service Protocol, which sets forth in detail the “fundamental tenets” of the Ombuds Service and provides clarification on issues including the role of the Ombudsman. The Directive and accompanying Protocol seek to facilitate public understanding of the independent role of the Ombudsman, including that the Ombudsman “will not conduct compliance evaluations, complaint investigations or participate in conciliation agreement negotiations, other than to provide neutral facilitation services.” The Protocol also sets forth detailed explanations of the Ombudsman’s standards of practice, functions, records and performance management, outreach and marketing, and methods of contact.

OFCCP Director Craig Leen stated these three new directives demonstrate OFCCP’s commitment to the prompt resolution of cases and minimizing burden and delay for federal contractors. We will keep you updated on future developments.

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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