Mediation, efficiency, and ombuds service.
The Office of Federal Contract Compliance Programs issued a trio of Directives on Friday, April 17. One establishes a mediation program. Another sets forth efficiency standards for the agency. The third details the services provided by the new Ombuds Service.
Directive 2020-03 – Pre-Referral Mediation Program
This Directive is the most significant of the three new Directives. It implements a formal mediation process for the OFCCP and federal contractors to resolve findings of discrimination before the OFCCP’s referral for enforcement to the Office of the Solicitor.
Although the agency may propose mediation at any stage of a compliance evaluation, the process will typically be offered after the OFCCP has issued both a Notice of Violation and a Show Cause Notice to a contractor. Mediation would not replace the standard conciliation phase after issuance of a Notice of Violation. The Directive provides that the OFCCP may decline mediation in two instances: (1) access of denial cases; and (2) in the rare cases where the agency proceeds directly to enforcement without a Show Cause Notice “based on exceptional circumstances.”
The Directive outlines “suggested steps and procedures” for the mediation process, including how the OFCCP and the contractor select the neutral third-party mediator, what submissions should be made to the mediator, who should attend the mediation, and where the mediation should be held. The mediation should “ideally” take place within 30 days of selection of the mediator.
The mediation process is voluntary, and the OFCCP notes that it is providing an “opportunity for resolving matters before significant time and resources are spent in the enforcement process.” Mediation is already a standard, if not mandatory, step in most litigation, and this is a welcome opportunity for contractors and the OFCCP to weigh potential resolution with a neutral third party before devoting the substantial time and resources required of the litigation process.
Directive 2020-02 – Efficiency in Compliance Evaluations
This Directive outlines the OFCCP’s goal to keep “aged” cases below 15 percent of its total caseload. Aged cases are those compliance evaluations that have not been closed, administratively or through conciliation agreement, or referred to the Office of the Solicitor, within two years of the Scheduling Letter initiating the compliance evaluation.
The OFCCP discloses that the average closure time for a compliance evaluation in Fiscal Year 2018 was 516 days. This figure decreased to 399 days in FY 2019. Further, in the first quarter of FY 2020, the OFCCP states that the average time for closing the desk audit portion of a compliance evaluation was 35 days.
The OFCCP’s “operational goal” is to complete compliance evaluations “within 180 days absent preliminary findings of discrimination, or to issue a [Pre-Determination Notice] in alleged discrimination cases no later than one year from the issuance of the scheduling letter.”
A contractor may request that the OFCCP review a compliance evaluation when it remains open for more than one year without the issuance of a Pre-Determination Notice or for more than two years without referral to the Solicitor’s Office. Such a request should be sent to the Director of OFCCP with a copy to the Ombudsperson, who will review and determine how to proceed.
Directive 2020-04 – Ombuds Service Supplement
This Directive supplements Directive 2018-09, which announced the OFCCP’s Ombuds Service to “facilitate fair and equitable resolution” of concerns raised by contractors, and provides a detailed Ombuds Service Protocol.
According to the Protocol,
The mission of the Ombuds Service is to offer an impartial and independent perspective to conflicts between external stakeholders and OFCCP, providing a neutral and, to the extent permitted by law, confidential resource while advocating for fair, efficient, and transparent policies and procedures. To achieve this mission, the ombudsman may offer any or all of the following services:
♦ Informal one-on-one conversations and/or listening sessions;
♦ Neutral conflict coaching sessions;
♦ Facilitated dialogue via shuttle diplomacy between OFCCP district and/or regional staff and stakeholders;
♦ Conciliation and negotiation discussions, conducted neutrally with a focus on preparing parties to effectively communicate;
♦ Mediation to resolve issues which persist, despite other preliminary attempts at resolution; and
♦ Large group facilitation, conflict resolution training and education for agency stakeholders and OFCCP staff.
For contractors experiencing challenges with compliance officers or district office staff during a compliance evaluation, the ombudsperson is a valuable resource to help facilitate a resolution. If that occurs, contractors should review the protocol to ensure full use of available resources.