Making an enforcement recommendation means seeking approval to refer the case to RSOL for either administrative or judicial enforcement. Before a case can move to enforcement, certain administrative and procedural actions must occur. The Regional Office working in collaboration with RSOL will consider whether a contractor has acted consistently and in good faith with an Opinion Letter, Directive, FAQ, Help Desk answer, or other OFCCP guidance in determining whether to proceed with an enforcement recommendation in a given matter. This chapter reviews those steps and procedures.
COs should make an enforcement recommendation when the contractor, with or without an SCN:
- Refuses to submit required AAPs and support data under one or more of the following: Executive Order 11246, Section 503 or VEVRAA;
- Refuses to provide access to its premises for an on-site review;
- Refuses to provide access to necessary information; or
- Harasses or intimidates a CO or agent of OFCCP (e.g., an OFCCP or SOL employee acting on behalf of the agency).
An enforcement recommendation should also be made in other situations, including when:
- An SCN is not resolved within 30 calendar days, or reasonable extensions thereof;
- A settlement negotiation fails to resolve violations specified in the NORI within 15 calendar days, or reasonable extensions thereof, in a complaint investigation;
- A contractor is not negotiating in good faith, and it is unlikely a CA will be reached;
- A 15-Day Notice of violation of the CA with no irreparable injury involved is not resolved within 15 calendar days, or reasonable extensions thereof; or
- A violation of a CA involves irreparable injury.
a. General. A compliance evaluation case file that OFCCP submits for enforcement consists of a brief cover memorandum, a Transmittal Memorandum and the standard compliance evaluation case file. The case file must contain every document OFCCP collected and/or generated in the course of the evaluation, including all emails; statistical analyses, including spreadsheets properly labeled and dated; nonstatistical/anecdotal evidence; mitigation data; interview statements and detailed descriptions of the employment processes or practices at issue. The case file must include a table of contents or index that identifies all of the contents and their location within the file, tabs and labels. The case file OFCCP submits to RSOL for enforcement should be an exact copy of the original case file and contain all of the documents in the original case file.425 The file is sent to the RO for transmittal to the RSOL. If needed, the RO can create and maintain a copy of the file at this point. The original file will remain in the field office responsible for conducting the compliance evaluation.
b. Cover Memorandum. The cover memorandum is typically one page. It contains a brief statement of all the violations at issue, and indicates which violation(s) were at impasse when the conciliation process terminated (e.g., jurisdiction, denial of access, whether there was a violation, the amount of back pay).
c. Transmittal Memorandum. Appendix A-13 describes the contents of the Transmittal Memorandum. The Transmittal Memorandum must be a stand-alone document that contains all of the information supporting why RSOL and DPO should ultimately approve the enforcement recommendation. It should include any strengths or weaknesses the CO uncovered during the course of the investigation or review, citations to relevant supporting documentation in the case file, contractor’s response to the alleged violations, OFCCP’s assessment of those responses and a history of the conciliation efforts, including any offers the CO and contractor exchanged. It should not be a Memorandum that consists solely of conclusory statements or summary information, but instead be a report explaining why RSOL should pursue the case for enforcement. Every fact in the Transmittal Memorandum must contain a reference to the location of the back-up information or documents in the case file that verify the fact.
425. In addition, a copy of the enforcement memo and list of supporting documents and tabs will be sent to DPO when the file is referred to RSOL.
a. General. A complaint investigation case file that OFCCP submits for enforcement consists of a cover memorandum and the standard complaint investigation case file. The case file must include a table of contents or index identifying all of the contents and their location within the file, tabs and labels. RSOLs are provided an exact copy of the original case file.
b. Cover Memorandum. The cover memorandum is typically one page. It must request enforcement, briefly state the law under which the victim filed the complaint, state the allegations and basis for the complaint, and state the violation(s) and the results of conciliation efforts. This includes the issues at impasse when conciliation terminated.
c. Transmittal Memorandum. The Transmittal Memorandum for a complaint investigation is similar in content to the Transmittal Memorandum description above.
The regional office submits the enforcement recommendation and case file simultaneously to RSOL and DPO. It must contain all of the documents in the original case file, including applications. The CO sends a copy of the cover memorandum and the transmittal memorandum to DPO, as well as the completed SCER (compliance evaluations) or Investigative Report (complaint investigations). Upon receipt, DPO is responsible for forwarding a copy of the enforcement recommendation and supporting documents to the national Office of the Solicitor of Labor (NSOL); specifically, the Associate Solicitor, Civil Rights and Labor-Management Division, Office of the Solicitor, U.S. Department of Labor, Room N-2474, 200 Constitution Ave., N.W., Washington, D.C. 20210.
If DPO uncovers deficiencies during its preliminary review of an enforcement recommendation, it rejects the enforcement referral and returns it to the appropriate regional office for further action or to correct the deficiencies, or both. Examples of deficiencies that may result in rejection include lack of jurisdiction, no evidence of consultation with RSOL prior to referral and incorrect citation of a violation. DPO concurrently informs NSOL to notify the appropriate RSOL of this action. Furthermore, should RSOL or NSOL, or both, have any concerns regarding the merits of the enforcement referral, the appropriate SOL office will notify the regional office to discuss the issues associated with the referral. If SOL rejects an enforcement referral, it must explain in writing the reasons for the rejection.
The applicable Regional Director has signature authority for an enforcement recommendation and cannot delegate this authority further. The originating district office will prepare the cover memorandum and transmittal memorandum, as appropriate, for the Regional Director’s signature.