This chapter outlines the procedures and documents OFCCP uses to resolve violations COs find during compliance evaluations and complaint investigations. These procedures and documents cover both affirmative action and discrimination violations and apply to all three of the laws OFCCP enforces: Executive Order 11246, as amended; Section 503, as amended; and VEVRAA, as amended.
COs should consult this chapter whenever they find noncompliance. COs should also refer directly to the resolution procedures codified in December 2020 at 41 CFR 60-1.33, 41 CFR 60-300.62, and 41 CFR 60-741.62 while this chapter undergoes revision to incorporate the final rule, “Nondiscrimination Obligations of Federal Contractors and Subcontractors: Procedures To Resolve Potential Employment Discrimination,” 85 FR 71553 (Nov. 10, 2020). Unless otherwise specified, the guidelines in this chapter apply to both supply and service and construction contractors.
If a CO identifies violations during a compliance evaluation or complaint investigation, the CO must secure remedies or sanctions, or both, to bring the contractor into compliance. COs design remedies for three reasons: to correct the violation, to prevent recurrence of the violation, and to make the victims whole. For a complete discussion of remedies and sanctions, see Chapter 7 of this Manual. Distinctions between remedies and sanctions are discussed below.
a. Remedy. Remedies are legally required actions to eliminate the effects of discrimination that include, for example, back pay or reinstatement. Remedies may also be taken or imposed to rectify noncompliance with affirmative action standards. Remember, remedies are corrective, not punitive, and are established in a CA.
b. Sanctions. In contrast to remedies, sanctions may be appropriate when a contractor fails to agree to acceptable remedies or fails to implement acceptable remedies for noncompliance. Examples of sanctions may include termination of a contract or debarment. Sanctions may also be appropriate when a violation is egregious or repetitive, or both. Sanctions can only be imposed after an opportunity for a hearing.369
369. EO 11246 secs. 208(b), 303(c); 41 CFR 60-1.26(b), 41 CFR 60-300.66(d), 41 CFR 60-741.66(d).
COs are responsible for preparing all the documents in this chapter for their compliance evaluations or complaint investigations. To initiate the resolution process, a CO must review the findings and the bases for each of the findings with his or her immediate supervisor. The CO then submits the recommendation and draft documents to the supervisor for review and, using established OFCCP procedures, to the appropriate agency official for approval and signature.370 Most notices discussed in this chapter must be sent by certified mail, return receipt requested, in addition to sending a courtesy copy by email or facsimile.
370. See the “Signature Authority” section for each document for the official designated authority to sign specific documents. Information on signature authority for CAs is also in FCCM 8H03.
When computing the contractor’s response date, the CO should begin counting from the day after the date on the return receipt requested form. If the response is received on a Saturday, Sunday or federal holiday, the actual date of receipt would be the next business day. If a CO does not receive a return receipt within five calendar days of mailing, the CO should contact the contractor to confirm the date of receipt and count the days from that date.
This chapter contains 13 sections, Sections A through M. Section A provides basic terms that may be useful and Section B is the first substantive section in this chapter. Section B is an overview of the application of SCNs at various steps in compliance evaluations and complaint investigations, and the documents used to notify contractors and issue an SCN. Section B also reviews the notices used when a CO finds a violation during a compliance evaluation such as a PDN and an NOV. The Manual reviews documents used during complaint investigations, such as a NORI and a Notification of Right-to-Sue, in this section. Among the other documents reviewed here are CAs, documents needed during the monitoring of CAs and the notice to labor unions when a CA affects a Collective Bargaining Agreement.
Section C specifically focuses on the notice to unions, while Section D is dedicated to a full discussion of SCNs. Section E is on PDNs, Section F addresses NOVs, Section G is devoted to conciliation. The remaining sections, K though M are on CAs, post-CA actions, using the 15-day notice, enforcement recommendations, pre and post referral issues resulting from enforcement proceedings and, finally, the types of enforcement proceedings.