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 180th 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
385. See FCCM 8D01 and 8D02.
386. See FCCM 6K and Letter L-25– Notification of Results of Investigation: Violation.
387. See FCCM 6L; and Letter L-21 – Notification of Results of Investigation: No Violation (Complaint Not Dual Filed), Letter L-22 – Notification of Results of Investigation: No Violation (Dual Filed), and Letter L-22 Enclosure–Notice of Right-to-Sue Under Title 1 of the ADA or Title VII of the Civil Rights Act of 1964: No Violation. Appendix A-11 – Information Related to Filing Suit under Title VII and Title I of the ADA must also be included with L-22.
388. See FCCM 6L02 – Closure of Complaint with No Violation.
389. See FCCM 6L03 – Closure of Complaint and Issuance of “Notice of Right-to-Sue.”
390. See Section 8C – Notice to Labor Union.
391. See FCCM 8K – Enforcement Recommendations.