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Content Last Revised: 12/22/97 |
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Code of Federal Regulations Pertaining to ESA |
| Public Contracts and Property Management |
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| Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor |
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| Obligations of Contractors and Subcontractors |
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| General Enforcement; Compliance Review and Complaint Procedure |
41 CFR 60-1.26 - Enforcement proceedings.
- Section Number: 60-1.26
- Section Name: Enforcement proceedings.
(a) General. (1) Violations of the Order, the equal opportunity
clause, the regulations in this chapter, or applicable construction
industry equal employment opportunity requirements, may result in the
institution of administrative or judicial enforcement proceedings.
Violations may be found based upon, inter alia, any of the following:
(i) The results of a complaint investigation;
(ii) The results of a compliance evaluation;
(iii) Analysis of an affirmative action program;
(iv) The results of an on-site review of the contractor's compliance
with the Order and its implementing regulations;
(v) A contractor's refusal to submit an affirmative action program;
(vi) A contractor's refusal to allow an on-site compliance
evaluation to be conducted;
(vii) A contractor's refusal to provide data for off-site review or
analysis as required by the regulations in this chapter;
(viii) A contractor's refusal to establish, maintain and supply
records or other information as required by the
regulations in this chapter or applicable construction industry
requirements;
(ix) A contractor's alteration or falsification of records and
information required to be maintained by the regulations in this
chapter; or
(x) Any substantial or material violation or the threat of a
substantial or material violation of the contractural provisions of the
Order, or of the rules or regulations in this chapter.
(2) OFCCP may seek back pay and other make whole relief for victims
of discrimination identified during a complaint investigation or
compliance evaluation. Such individuals need not have filed a complaint
as a prerequisite to OFCCP seeking such relief on their behalf. Interest
on back pay shall be calculated from the date of the loss and compounded
quarterly at the percentage rate established by the Internal Revenue
Service for the under-payment of taxes.
(b) Administrative enforcement. (1) OFCCP may refer matters to the
Solicitor of Labor with a recommendation for the institution of
administrative enforcement proceedings, which may be brought to enjoin
violations, to seek appropriate relief, and to impose appropriate
sanctions. The referral may be made when violations have not been
corrected in accordance with the conciliation procedures in this
chapter, or when OFCCP determines that referral for consideration of
formal enforcement (rather than settlement) is appropriate. However, if
a contractor refuses to submit an affirmative action program, or refuses
to supply records or other requested information, or refuses to allow
OFCCP access to its premises for an on-site review, and if conciliation
efforts under this chapter are unsuccessful, OFCCP may immediately refer
the matter to the Solicitor, notwithstanding other requirements of this
chapter.
(2) Administrative enforcement proceedings shall be conducted under
the control and supervision of the Solicitor of Labor and under the
Rules of Practice for Administrative Proceedings to Enforce Equal
Opportunity under Executive Order 11246 contained in part 60-30 of this
chapter and the Rules of Evidence set out in the Rules of Practice and
Procedure for Administrative Hearings Before the Office of
Administrative Law Judges contained in 29 CFR part 18, subpart B:
Provided, That a Final Administrative Order shall be issued within on
year from the date of the issuance of the recommended findings,
conclusions and decision of the Administrative Law Judge, or the
submission of any exceptions and responses to exceptions to such
decision (if any), whichever is later.
(c) Referrals to the Department of Justice. (1) The Deputy Assistant
Secretary may refer matters to the Department of Justice with a
recommendation for the institution of judicial enforcement proceedings.
There are no procedural prerequisites to a referral to the Department of
Justice. Such referrals may be accomplished without proceeding through
the conciliation procedures in this chapter, and a referral may be made
at any stage in the procedures under this chapter.
(2) Whenever a matter has been referred to the Department of Justice
for consideration of judicial enforcement, the Attorney General may
bring a civil action in the appropriate district court of the United
States requesting a temporary restraining order, preliminary or
permanent injunction (including relief against noncontractors, including
labor unions, who seek to thwart the implementation of the Order and
regulations), and an order for such additional sanctions or relief,
including back pay, deemed necessary or appropriate to ensure the full
enjoyment of the rights secured by the Order, or any of the above in
this paragraph (c)(2).
(3) The Attorney General is authorized to conduct such investigation
of the facts as he/she deem necessary or appropriate to carry out his/
her responsibilities under the regulations in this chapter.
(4) Prior to the institution of any judicial proceedings, the
Attorney General, on behalf of the Deputy Assistant Secretary, is
authorized to make reasonable efforts to secure compliance with the
contract provisions of the Order. The Attorney General may do so by
providing the contractor and any other respondent with reasonable notice
of his/her findings, his/her intent
to file suit, and the actions he/she believes necessary to obtain
compliance with the contract provisions of the Order without contested
litigation, and by offering the contractor and any other respondent a
reasonable opportunity for conference and conciliation, in an effort to
obtain such compliance without contested litigation.
(5) As used in the regulations in this Part, the Attorney General
shall mean the Attorney General, the Assistant Attorney General for
Civil Rights, or any other person authorized by regulations or practice
to act for the Attorney General with respect to the enforcement of equal
employment opportunity laws, orders and regulations generally, or in a
particular matter or case.
(6) The Deputy Assistant Secretary or his/her designee, and
representatives of the Attorney General may consult from time to time to
determine what investigations should be conducted to determine whether
contractors or groups of contractors or other persons may be engaged in
patterns or practices in violation of the Executive Order or these
regulations, or of resistance to or interference with the full enjoyment
of any of the rights secured by them, warranting judicial proceedings.
(d) Initiation of lawsuits by the Attorney General without referral
from the Deputy Assistant Secretary. In addition to initiating lawsuits
upon referral under this section, the Attorney General may, subject to
approval by the Deputy Assistant Secretary, initiate independent
investigations of contractors which he/she has reason to believe may be
in violation of the Order or the rules and regulations issued pursuant
thereto. If, upon completion of such an investigation, the Attorney
General determines that the contractor has in fact violated the Order or
the rules and regulations issued thereunder, he/she shall make
reasonable efforts to secure compliance with the contract provisions of
the Order. He/she may do so by providing the contractor and any other
respondent with reasonable notice of the Department of Justice's
findings, its intent to file suit, and the actions that the Attorney
General believes are necessary to obtain compliance with the contract
provisions of the Order without contested litigation, and by offering
the contractor and any other respondent a reasonable opportunity for
conference and conciliation in an effort to obtain such compliance
without contested litigation. If these efforts are unsuccessful, the
Attorney General may, upon approval by the Deputy Assistant Secretary,
bring a civil action in the appropriate district court of the United
States requesting a temporary restraining order, preliminary or
permanent injunction, and an order for such additional sanctions or
equitable relief, including back pay, deemed necessary or appropriate to
ensure the full enjoyment of the rights secured by the Order or any of
the above in this paragraph (d).
(e) To the extent applicable, this section and part 60-30 of this
chapter shall govern proceedings resulting from any Deputy Assistant
Secretary's determinations under Sec. 60-2.2(b) of this chapter.
[62 FR 44190, Aug. 19, 1997, as amended at 62 FR 66971, Dec. 22, 1997]
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