8B Overview of Resolution and Enforcement Procedures and Documents

As used in this section, the term SCN includes, as appropriate, an Amended Show Cause Notice (ASCN). An ASCN is used when a CO issues an SCN to the contractor and later finds additional unresolved violations, or finds that some but not all violations were cited in error. The ASCN identifies all the unresolved or current violations.371

Also, be aware that if a contractor properly asserts in response to an SCN or ASCN that the CO erroneously issued the notice, the CO must send a letter to the contractor or its representative rescinding the SCN or ASCN.372

(Supply & Service Compliance Evaluations)

COs must recommend issuance of an SCN, as described in Section 8D, at the desk audit stage if the contractor:

• Fails to submit an AAP required by one or more of the laws enforced by OFCCP: Executive Order 11246, Section 503 or VEVRAA;373
• Fails to submit an AAP that substantially complies with the regulatory requirements under one or more of the laws enforced by OFCCP: Executive Order 11246, Section 503 or VEVRAA;374
• Fails to submit employment activity data or other information requested in the Scheduling Letter;375 or
• Fails to submit corrected data after providing employment activity data or compensation data, or both, that are incomplete or inaccurate.376

The SCN allows the contractor 30 calendar days from receiving the notice to resolve the violation. Specific actions will be taken by the CO, as described below, depending on whether the contractor resolves the violations.

• Contractor Does Not Resolve Violation. If the violation is not resolved within the 30-day show cause period, or during a reasonable extension, the CO should recommend enforcement. Enforcement is discussed in detail in Section 8K, Enforcement Recommendation.
• Contractor Resolves Violation. If the contractor resolves the violations within the 30-day show cause period by, for example, submitting a reasonable Executive Order 11246, Section 503 or VEVRAA AAP, the review continues with a review of the AAP or moves to the on-site phase. Upon completion of the review, the CO must state the violations identified and for which the contractor has agreed upon a remedy in a CA.377 Technical violations resolved by the contractor during the course of the review need not be included in the CA, but can be documented in a letter of closure.

Based on the nature of the issue or violation in the on-site and off-site phases, in both Supply & Service and construction evaluations, COs will use different forms or documents. Below is a review of the use of SCNs, PDNs, NOVs and notices to labor unions in various situations.

a. Denial of Access. If a contractor denies access to its premises, records or other information necessary to conduct an on-site or off-site review, the CO must issue an SCN or proceed directly to an enforcement recommendation.378

b. Interference with OFCCP. If a contractor’s representative harasses or intimidates a representative of OFCCP during the course of an on-site or off-site review, or unreasonably interferes with the review process, the CO must issue an SCN or proceed directly to an enforcement recommendation.379

c. Finding of a Violation. If the CO identifies a violation under any of OFCCP’s three laws during an on-site or off-site review, the type of notice the CO must issue depends on the nature of the violations.

• Discrimination Violation. If the CO identifies employment discrimination, the following notices are appropriate:
  • PDN. A CO first issues a PDN to the contractor that describes the preliminary findings of potential discrimination, as well as any other violations found, and offers the contractor the opportunity to respond.380 The CO must consult with RSOL, BES, and other appropriate agency personnel in the national office prior to issuing the PDN.
  • NOV. If the contractor does not adequately respond to the PDN, a CO issues an NOV after consulting with RSOL, BES, and appropriate agency personnel in the national office.381 This notice incorporates both the discrimination finding and any other violation, and invites the contractor to participate in the conciliation process.
• Other Violations. If a CO identifies no discrimination violations but identifies other violations, such as those involving affirmative action obligations, the CO does not use a PDN. Rather, the CO gives the contractor an initial written notice of the findings in an NOV.

d. Notice to Labor Union. If a proposed remedy for a violation requires a change in or otherwise affects a provision of a CBA between the contractor and a labor union, or requires the award of retroactive seniority where the CBA governs, the CO must notify the union of the violation and invite the union to participate in the conciliation.382 If the contractor wants to conciliate after receiving the NOV, the CO must notify the union at that point. Otherwise, the CO must notify the union when the SCN is issued.

e. Unresolved Violation. If, after issuing an NOV, reasonable conciliation efforts to resolve all violations fail, the CO issues an SCN for the unresolved violations.383 The SCN allows the contractor 30 calendar days from receipt of the notice to resolve the violations.

• Contractor Does Not Resolve Violation. If the contractor does not resolve the violations within the 30-day show cause period, or with a reasonable extension, the CO must recommend enforcement.
• Contractor Resolves Violation. A CA must include resolution of any material violations of any of the three laws OFCCP enforces.384 When a contractor executes a CA, the CO closes the review with a letter. If the CO issued an SCN and the contractor later entered into a CA, the CO uses Letter L-40, Closure Letter for Substantive Violations (where an SCN was issued). If a contractor executes a CA without the CO issuing an SCN beforehand, the CO uses Letter L-41, Closure Letter for Substantive Violations (no SCN issued).

Based on the nature of the issue or violation in a complaint investigation, COs will use different forms or documents. Below is a review of the use of SCNs, NORIs, Notifications of Right-to-Sue and notices to labor unions in various situations.

a. Denial of Access. If a contractor denies access to its premises, records or other information necessary to conduct an investigation of a complaint, OFCCP may issue an SCN.385

b. Interference with OFCCP. If a contractor’s representative intimidates or harasses a representative of OFCCP during the course of a complaint investigation, or unreasonably interferes with the investigation, a CO may issue an SCN or proceed directly to an enforcement recommendation.

c. Transmittal of Investigation Findings. COs transmit the findings of a complaint investigation to the complainant and the contractor through the NORI. The contractor and complainant are issued a NORI-Violation if a complaint investigation results in a finding of a violation and the complaint is not resolved.386 In this notice, OFCCP offers to meet with the contractor to attempt to resolve the violations through conciliation. If the CO finds “no violation,” he or she issues the contractor and complainant a NORI-No Violation.387

d. Notification of Right-to-Sue. If a complaint is dual filed under Section 503 and the ADA, as amended; or under Executive Order 11246, as amended, and Title VII, as amended; and there is no violation finding, the Notice of Right-to-Sue accompanies the notification of closure.388 In addition, if a complainant requests a Notice of Right-to-Sue in writing before 180 calendar days passes, and the Regional Director, or designee, can foresee that the investigation will extend beyond the 180^th day, the Regional Director, or designee, will issue the notice within 10 calendar days to the complainant.389

e. Notice to Labor Union. If make-whole relief for the complainant requires a change in or otherwise affects a provision of a CBA between the contractor and a labor union, COs notify the union of the violation and invite the union to participate in the conciliation.390 An example of make-whole relief that might require a change in the CBA is an award of retroactive seniority.

f. CA. This binding agreement is the result of negotiations between the CO and contractor to resolve findings of noncompliance.

• Conciliation Successful. The contractor must resolve, in a CA, any finding of violation in a complaint investigation, whether individual or class, under any of the three laws OFCCP enforces.
• Conciliation Unsuccessful. If, after reasonable time and effort, OFCCP and the contractor cannot agree to the resolution of the identified violation, the CO must issue an SCN. If the contractor and OFCCP do not reach a settlement within the 30-calendar-day show cause period, or reasonable extensions thereof, the CO must recommend enforcement.391

Once executed, a CA is monitored by the CO and the contractor submits progress reports for review. This subsection reviews the documents involved in monitoring a CA, such as a 15-Day Notice.

a. Contractor Does Not Submit a Progress Report. If a contractor fails to submit a progress report due under a CA within five days following the due date (unless a reasonable extension has been requested), or if the CO’s review of such a report shows a violation of the CA, the contractor has violated or breached the CA. The following actions are taken:

• No Irreparable Injury. In a no irreparable harm case, the CO issues the contractor a 15-Day Notice. The Notice provides 15 calendar days for the contractor to respond. The notice states the violations and summarizes the supporting evidence. The CO sends the notice by certified mail, return receipt requested; however, email or facsimile are permissible if confirmation of delivery and/or transmission is documented.392
• Irreparable Injury. When irreparable injury would result from the 15-day delay, the CO does not issue a 15-Day Notice. Rather, the appropriate Regional Director, after obtaining appropriate approval, verbally informs the contractor of OFCCP’s intent to proceed immediately to enforcement. This verbal notice is then followed by a written confirmation the CO sends by certified mail, return receipt requested; however, email or facsimile are permissible if confirmation of delivery and/or transmission is documented.393

b. Enforcement Recommendation. If the contractor does not demonstrate in writing that it is in compliance with the CA, or if contractor does not resolve the breach within the 15-calendar-day period or reasonable extensions thereof, the CO must recommend the matter for enforcement. In such a situation, there is no need for the CO to issue an SCN. Also, in enforcement proceedings alleging a breach of CA, the agency seeks enforcement of the terms of the CA and is not required to present proof of the original violations that led to the CA.