This section reviews the proper use of a 15-Day Notice, the different procedures used when irreparable injury and no such injury exist, who signs and who receives the Notice, and how contractors respond to the Notice.
When a CO finds that the contractor violated the CA, the CO should issue a 15-Day Notice to the contractor unless such a delay would result in irreparable injury to the employment rights of affected employees or applicants. In the case of irreparable harm, the response is as described in FCCM 8J02 below.
The 15-Day Notice in this instance includes a cover letter and an enclosure citing the provisions of the CA the contractor violated and the bases for the findings.422 The Notice will give the contractor 15 calendar days from receipt of the Notice to demonstrate, through a written presentation of facts and evidence, that the contractor is in compliance with the provisions cited in the CA.423
422. See Letter L-37 and L-37a.
423. 41 CFR 60-1.34(a); 41 CFR 60-741.63; and 41 CFR 60-300.63.
Irreparable injury may occur when a violation of a CA is either in progress or expected, and the employment rights of affected employees or applicants will be irreparably harmed if the violation is not prevented or corrected during the 15-day response time normally allowed. Examples of such cases are when:
- Employees are experiencing severe harassment or retaliation; or
- The contractor has a CA commitment to offer a victim of discrimination a unique job (one unlikely to open again in the foreseeable future), such an opening occurs and the contractor is about to fill it with someone other than the victim.
When irreparable injury would result from the delay, the CO will not issue a 15-Day Notice. Instead, after obtaining RSOL clearance, the Regional Director shall attempt to notify the top establishment official by telephone that OFCCP intends to proceed directly to enforcement.424
After oral notice of breach of the CA and irreparable injury, the CO must immediately send a confirmation letter, cleared by RSOL, that cites the provisions of the CA the contractor violated, the bases for the findings, the reason for the irreparable injury allegation and OFCCP’s intent to proceed directly to enforcement.
424. See 41 CFR 60-1.34(a), 41 CFR 60-741.63(a)(1), and 41 CFR 60-300.63(a)(1).
The CO addresses a 15-Day Notice and the letter of confirmation referenced in FCCM 8J02 to the top official at the establishment under review, or the top official at the construction company in the economic area being reviewed. A copy is sent to the CEO of the corporation if the establishment or construction company is part of a larger corporation. If the contractor requested in writing that the CO provide a copy of the review or investigation correspondence to an outside representative such as an outside counsel or consultant, the CO will also send a copy to the designated representative. If the CO provides copies to a corporate CEO, other contractor official and/or a designated representative, the CO will include a “cc:” line on all copies indicating the people to whom the CO sent the Notice.
The CO always sends a 15-Day Notice via certified mail, return receipt requested. Email and facsimile are also permissible options.
The Regional Director has signature authority for a 15-Day Notice and may not further delegate this authority. District Directors will send a proposed 15-Day Notice to the Regional Director, along with a copy of the CA that the contractor has violated and documentation pertaining to the CA provisions violated. Unless the contractor demonstrates that the CO’s findings are incorrect, the CO refers the matter to RSOL for enforcement as described in FCCM 8K on Enforcement.
The contractor has 15 calendar days from the date it receives the 15-Day Notice to respond. If the contractor does not respond within the 15-day period, or reasonable extensions thereof, the CO refers the case for enforcement.
If the contractor does respond, OFCCP will evaluate whether the response shows that the CO erroneously issued the 15-Day Notice or otherwise explains the violations. If so, the CO will either rescind the 15-Day Notice or otherwise resolve the matter with the contractor. If not, the CO will formally refer the case to RSOL. RSOL, with the CO’s assistance, will attempt to negotiate a consent decree that includes all appropriate remedies. If the contractor is unwilling to enter into a consent decree, RSOL will treat the case as a normal enforcement referral, as described in Section 8L on enforcement proceedings.