a. Two-Year Limit. The victim can obtain back pay for a period beginning two years prior to the date the Scheduling Letter was sent to the contractor via return receipt mail, or two years before the victim filed the complaint. If the discriminatory acts took place less than two years before the Scheduling Letter was sent or the filing of the complaint, back pay is due from the date of violation. Back pay continues from these events until a CA or other voluntary correction stops the discriminatory actions, or until the contractor makes a bona fide offer of the position denied or rectifies the pay disparity. Total back pay can, therefore, be for more than two years.
b. Bona Fide Offer. Under appropriate circumstances, the victim’s rejection of a bona fide offer of the position previously denied by the contractor terminates the further accrual of back pay liability. However, interest continues to accrue until settlement on the back pay losses prior to the bona fide offer. A bona fide offer does not require the victim to waive any rights or remedies to which he or she is entitled. For example, the parties may disagree on whether retroactive seniority is appropriate. However, as long as the contractor offers to place the victim in the same job (including shift and location) that was previously denied by the contractor, and do so without requiring that the victim waive any right to seniority, the offer is bona fide. Under these circumstances, the parties can agree to litigate or arbitrate the seniority issue at a later date. If the victim accepts the offer, back pay is still due up to acceptance and front pay continues to accrue for losses suffered as a result of missed promotional opportunities or increased risk of layoff. If the victim rejects a bona fide offer, he or she is not disqualified from receiving back pay; back pay merely cuts off at the date of the offer.
c. Liability Continuing Beyond the Review Period. Unless the contractor produces evidence that it has stopped discrimination during the conciliation phase of a compliance evaluation, OFCCP will calculate remedies on the assumption that the discrimination persists and that the liability continues until the contractor enters into a CA or otherwise provides relief to the victims.
d. Continuing Violation. If the CO finds a continuing violation,368 the contractor should provide remedies for the entire period of the violation, but not earlier than the effective date of Executive Order 11246, Section 503 or VEVRAA, as appropriate. However, victims affected by a continuing violation can only recover back pay for the effects of the violation that occur within the period beginning two years prior to the scheduling notice, even when the specific act affecting them occurred outside the two-year period.
368. See FCCM 7B00.