U.S. Department of Labor Seal

U.S. DEPARTMENT OF LABOR
Office of Federal Contract Compliance Programs

 

A Directive (DIR) is intended to provide guidance to OFCCP staff and/or federal contractors on enforcement and compliance policy or procedures. A DIR does not change the laws and/or regulations governing OFCCP’s programs and does not establish any legally enforceable rights or obligations. The contents of this document do not have the force and effect of law and are not meant to bind the public in any way. This document is intended only to provide clarity to the public regarding existing requirements under the law or agency policies.


Effective Date: April 17, 2020


 

  1. SUBJECT: Efficiency in Compliance Evaluations

  2. PURPOSE: To announce operational initiatives to keep the number of cases that are aged, as defined herein, below 15 percent of OFCCP’s total caseload.

  3. REFERENCES: This Directive (DIR) references the guidance listed below.
    1. Executive Order 11246, as amended.
    2. Section 503 of the Rehabilitation Act of 1973, as amended (Section 503).
    3. Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended (VEVRAA).
    4. DIR 2018-08, Transparency in OFCCP Compliance Activities (Sept.19, 2018).
    5. DIR 2019-02, Early Resolution Procedures (Nov. 30, 2018).

  4. AFFECTED POLICY: None

  5. BACKGROUND:

    Shortening the duration of compliance evaluations is a significant objective in the fiscal year (FY) 2020 OFCCP Operating Plan. OFCCP has taken multiple actions to ensure that aged-case reduction is a priority for the agency. Aged cases are defined as compliance evaluations that have not resulted in an administrative closure, conciliation agreement, or referral to the Office of the Solicitor within two years of the date of the scheduling letter. Timely completion of compliance evaluations and quick remediation of violations are beneficial to employees, applicants, and contractors. Efficient compliance evaluations also help ensure that relevant evidence is collected in as timely a manner as possible (and in the case of witness testimony, is not lost due to witness unavailability or fading memories). Therefore, thorough compliance evaluations completed in an expeditious manner benefit the regulated community, OFCCP, and most importantly, the workers that OFCCP is tasked to protect.

    In September 2018, OFCCP issued Directive 2018-08, Transparency in OFCCP Compliance Activities. Directive 2018-08 seeks to ensure transparency in all stages of OFCCP compliance evaluations to help contractors comply with their obligations and know what to expect during a compliance evaluation. This directive helps protect workers from discrimination through the consistent enforcement of OFCCP legal authorities. Further, this directive established that OFCCP must contact contractors within 15 days of sending the scheduling letter to allow sufficient time for contractors to receive technical assistance during the compliance evaluation, and set the goal for OFCCP to complete the desk audit within 45 days of receiving a complete and acceptable Affirmative Action Program (AAP).

    In November 2018, OFCCP issued Directive 2019-02, Early Resolution Procedures, to promote early and efficient resolution and conciliation of evaluations for supply and service contractors. Directive 2019-02 allows a contractor to proactively address violations at the establishment level on a company-wide basis. Compliance evaluations resolved directly through the ERP program do not require a Predetermination Notice (PDN) or Notice of Violation (NOV) and can instead advance straight to conciliation. 

    In FY 2018, the average time to close a compliance evaluation was 516 days, with the average time to complete a desk audit ranging from 142 days (in evaluations without an NOV) to 229 days (in evaluations with a NOV). By FY 2019, OFCCP was able to decrease these timeframes significantly: evaluations took an average of 399 days to close (a decrease of 23%), desk audits with NOVs took an average of 158 days to complete (a decrease of 31%), and desk audits without NOVs took an average of 68 days to complete (a decrease of 51%). In the first quarter of FY 2020, OFCCP completed the average desk audit in 35 days.

    OFCCP has also established an operational goal of completing evaluations within 180 days absent preliminary findings of discrimination, or to issue a PDN in alleged discrimination cases no later than one year from the issuance of the scheduling letter. This goal assumes the contractor fully cooperates with the compliance review, including timely submissions of all documents and records and providing prompt access to all interviewees and premises requested by OFCCP.

  6. ROLES AND RESPONSIBILITIES:

    1. OFCCP Director, Deputy Director, Director of Enforcement, and Director of Operations (hereinafter “National Office leadership”) are responsible for:
      1. receiving detailed monthly reports regarding the progress of open compliance evaluations, including alerts of aged cases in the Compliance Management System (CMS).
         
    2. Regional Directors and National Office leadership are responsible for:
      1. being alerted to individual aged cases prior to the timeframes established in this Directive; and
      2. devising an action plan to expedite the evaluation, including use of Early Resolution Procedures set forth in Directive 2019-02.
         
    3. OFCCP Ombudsman is responsible for:
      1. obtaining the perspectives of relevant parties;
      2. facilitating dialogue between the parties; and
      3. making recommendations to the contractor, Regional Director, and National Office leadership, as appropriate.
         
    4. Compliance Officers are responsible for:
      1. continuing to provide contractors with a general status update at least once a month during a compliance evaluation; and
      2. responding to National Office inquiries during reviews of compliance evaluations.
         
  7. POLICY AND PROCEDURES:
    • OFCCP’s CMS will send reminders to Compliance Officers to contact contractors at least once every 30 days after a compliance evaluation commences in order to provide a status update.
    • CMS will alert the Regional Director and the Directors of Program Operations and Enforcement when a compliance evaluation remains open for 12 months without the issuance of a PDN, and at six-month intervals thereafter.
    • OFCCP will continue to promptly issue Show Cause Notices and refer denial of access cases for enforcement where necessary.[1]
    • Where a contractor has generally provided all information requested by OFCCP during the course of the compliance evaluation, the contractor may request that OFCCP conduct a review of an open compliance evaluation to determine and address any reasons for a delay under the following circumstances:
      1. a compliance evaluation remains open for one year from the day the contractor received the scheduling letter, without the issuance of a PDN; or
      2.  a compliance evaluation remains open for two years and has not been referred to the Office of the Solicitor
         
    • The petition request must be sent to the Director with a copy to the Ombudsman. As a prerequisite, the issue should have been raised with the Regional Director. The Ombudsman will then review the matter and report back findings to the Director, who will make a determination in consultation with the career Deputy Director, Director of Enforcement, and Regional Director as to how to proceed.
    • The Director will review the policies in this directive annually and, if prudent, further shorten the deadlines.
       
  8. INTERPRETATION: This Directive does not create new legal rights or requirements or change current legal rights or requirements for contractors or OFCCP. Executive Order 11246, Section 503, VEVRAA, OFCCP’s regulations at 41 CFR Chapter 60, and applicable case law are the official sources for contractors’ compliance responsibilities. Nothing in this Directive is intended to change otherwise applicable laws, regulations, or other guidance or to restrict or limit OFCCP’s ability to perform compliance evaluations, request data, or pursue enforcement of any issue within its jurisdiction. This Directive is not intended to have any effect on pending litigation, nor will it alter the agency’s basis for litigating any pending cases.
     
  9. ATTACHMENTS:

 

SIGNATURE:

________________________________

/S/

CRAIG E. LEEN

Director

Office of Federal Contract Compliance Programs


[1] OFCCP recognizes that delays could be caused by a contractor’s failure to provide access to records, interviews, or the physical establishment as required by OFCCP’s regulations. When contractors fail to cooperate during evaluations, OFCCP has referred denial of access matters to the Office of the Solicitor for enforcement, and will continue to do so.