8B02 Documents Used in the On-Site and Off-Site Phases of Compliance Evaluations (Supply & Service and Construction)
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).
378. See FCCM 8D01– When a Show Cause Notice is Required.
379. See FCCM 8D02 – When a Show Cause Notice is Not Required.
380. See FCCM 8E – Predetermination Notice; Letter L-35– Predetermination Notice.
381. See FCCM 8F – Notice of Violation; Letter L-36 – Notice of Violation.
382. See FCCM 8C – Notice to Labor Union.
383. See FCCM 8D01– When a Show Cause Notice is Required, Letter L-30 – Show Cause Notice: Unresolved Violations, and Letter L-30a – Sample Enclosure to Letter L-30.
384. See FCCM 8H – Conciliation Agreements.