by Laura A. Mitchell and Christopher T. Patrick
Under the leadership of new OFCCP Director Ondray Harris, the Agency has issued its first policy directive of 2018. Directive 2018-01, effective February 27, addresses an area of concern discussed at length during the Agency’s listening sessions earlier this year: the need for increased transparency.
The Directive instructs all OFCCP offices to issue a Predetermination Notice (“PDN”) prior to issuing a Notice of Violations when the Agency has concluded its review and believes findings of discrimination may be appropriate. A PDN is a letter OFCCP uses to inform contractors of the Agency’s preliminary findings of employment discrimination and serves as a way to provide contractors an opportunity to respond to preliminary findings prior to OFCCP deciding to issue discrimination violations.
Before the Directive, OFCCP
typically reserved use of the PDN for systemic discrimination cases and permitted regional and district offices discretion in whether to issue the PDN prior to issuing a Notice of Violation (NOV).
But now, PDNs are required and, it is Agency policy that,
OFCCP will issue PDNs for preliminary individual and systemic discrimination findings identified during the course of compliance evaluations.
This is welcome news for contractors facing aggressive, protracted compliance reviews in which it was uncertain whether they would have notice of OFCCP’s preliminary findings. This additional step in the process will hopefully foster an open dialog between contractors and OFCCP to clarify misunderstandings and correct errors in analyses.
The Directive also suggests increased National Office oversight and review of potential violations before the Agency concludes that discrimination violations are appropriate – requiring that the regional Solicitor review all PDNs and submit them to OFCCP’s national office for a “review and final decision.” It even halts violations that are drafted but not yet issued, and requires that local office issued a PDN instead so that the contractor may respond before any formal allegations of discrimination are issued.
While the ultimate impact of this Directive is still unclear, it an encouraging policy step in Director Harris’s young tenure.
This Directive is new, and it’s implementation still developing. The Directive indicates OFCCP will be updating the Federal Contractor Compliance Manual (FCCM) consistent with the Directive. We will keep you posted as we learn more.