As we reported on Friday, November 30, OFCCP began it’s 2019 fiscal year by releasing a rash of new directives. On Monday, we looked at the rescission of Obama Administration’s Active Case Enforcement (ACE) directive. Yesterday, we reviewed OFCCP’s new guidance on Early Resolution Procedures. Today we review the third Directive – Directive 2019-03: Opinion Letters and Help Desk.

Under Directive 2019-03 (effective November 30, 2018), OFCCP continues its trend towards increased transparency and certainty – two of the Agency’s four pillars described by Acting Director Leen earlier this year –  by unveiling two new agenda items. First, OFCCP announced it would begin issuing Opinion Letters, and second, OFCCP plans to modify and improve the convenience of its Help Desk resources for easier use by the regulated community.

Opinion Letters

As Director Leen hinted at this summer, OFCCP will be following in the footsteps of other Agencies within the Department of Labor by using Opinion Letters to address issues that are unclear in the regulations and answer other compliance questions. Specifically, OFCCP intends to use its opinion Letters to provide

 fact-specific guidance about OFCCP’s jurisdictional coverage or application of guidance.

The precise process for requesting an Opinion Letter is not yet available, but the Directive provides both employers and employees may request Opinion Letters, the requestor(s) will remain anonymous, and the resulting guidance may address an “individual contractor, an industry, a category of contractors, all contractors as well as a particular category of employees such as Protected Veterans.”

Prior to issuance, the Office of the Solicitor will review the guidance to ensure consistency with applicable laws and regulations. Once issued, these Letters are intended to reduce uncertainty for compliance in unusual situations.

However, as might be expected, Opinion Letters are not a get-out-of-jail-free-card. The Directive specifies that OFCCP will not issue Opinion Letters that address matters currently under litigation or for a contractor currently undergoing a compliance review.

Help Desk

OFCCP already provides technical assistance to contractors who call or e-mail its Help Desk for assistance with technical compliance issues. Additionally, OFCCP occasionally releases official FAQs along with responses to provide guidance on repeated requests.  In order to improve the quickness and ease of addressing compliance issues., OFCCP announced through the Directive that it would be expanding its Help Desk functionality by

making certain Help Desk inquires and responses dynamically available and searchable as a self-service option on OFCCP’s website.

For Contractors

Directive 2019-03 sends a twofold message to the contracting community. First, increased transparency and public information may (and theoretically should) assist employers in resolving sticky issues not clearly addressed on the face of the regulations. Second, employers have an incentive to stay apprised of the latest developments.  As the Directive notes, during an enforcement action,

OFCCP 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… .

While sub regulatory, and without the force of law, the message is clear; OFCCP may give more of the benefit of the doubt to contractors who rely on the Agency’s guidance.

As we have previously reported, OFCCP announced plans to increase the number of audits significantly in 2019 as well as institute compliance verification procedures.  This Directive reiterates the importance of getting up to speed on regulatory obligations and preparing now for the greater likelihood of facing a compliance review.

Stay tuned, as Jackson Lewis will continue to monitor and analyze new developments as OFCCP implements this new directive and issues its first Opinion Letters.

 

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Photo of Laura A. Mitchell Laura A. Mitchell

As co-leader of the firm’s ESG group, Laura Mitchell partners with her clients to evaluate, set, achieve and monitor their organizational culture and human capital goals. She focuses her practice on data analytics, including pay equity and other employee analytics, working side-by-side with…

As co-leader of the firm’s ESG group, Laura Mitchell partners with her clients to evaluate, set, achieve and monitor their organizational culture and human capital goals. She focuses her practice on data analytics, including pay equity and other employee analytics, working side-by-side with employers to build programs that benefit employees and create a stable, high-functioning workplace. Understanding that an inclusive, values-based culture provides a crucial competitive advantage in the modern workplace, Laura enjoys counseling companies on the development of proactive and equitable pay and diversity practices.

In Laura’s version of the reimagined workplace, attention to human capital issues, especially DEI and pay equity, would be the rule rather than the exception nationwide and she works with companies across all industries—both new and well-established multi-national organizations of all sizes—to realize this vision for her clients’ ongoing success. She helps clients understand all issues across the spectrum of their journey, helping to establish regular analyses as well as counseling organizations on implementation and compliance obligations, where applicable. Committed to putting her clients’ organizational goals first and foremost, Laura views herself as an extension of her clients’ team, responsible for providing proactive guidance and engaging in transparent, ongoing communication.

Laura also represents companies in OFCCP matters, preparing for and defending OFCCP audits, and counseling employers on issues stemming from OFCCP regulations. She personally oversees the development of hundreds of Affirmative Action Plans for clients each year and is intimately involved in the defense of OFCCP audits. Her approach to compliance is one of facilitation and conciliation while simultaneously advocating in the best interests of her clients.