In the second of the three most recent OFCCP Directives, OFCCP has formalized a pre-referral mediation program “to provide the best opportunity for resolving matters before significant time and resources are spent in the enforcement process,” and prior to referring the case for enforcement to the Office of the Solicitor (SOL).

Directive (DIR) 2020-03 dictates or suggests the nuts and bolts for the mediation process:

  • The Program is available only where OFCCP has issued a Show Cause Notice (SCN) alleging discrimination, and exceptional circumstances do not warrant, in OFCCP’s discretion, moving directly to enforcement.
  • The contractor and OFCCP would each propose three mediators, who may be:  (1) from the Federal Mediation and Conciliation Service (FMCS) or other qualified federally approved mediators; (2) the OFCCP Ombudsman; or (3) any qualified individual.   The parties would each rank the six proposed mediators, with the highest ranked being selected.  In the event of a tie, the parties may agree on a mediator or refer mediator selection to the FMCS Director, who would select an FMCS mediator who was not on either of the parties’ list.
  • Mediation should begin within 30 days of the selection of the mediator.
  • OFCCP’s proposed process envisions the parties would together

develop mutually agreeable parameters for the structure of the mediation, including whether parts of the mediation will include joint and/or private sessions.

If the parties cannot agree on parameters, OFCCP may refer a case to the SOL without first attempting mediation.

  • The parties would exchange confidential position statements with each other and the mediator in advance of a mediation session, but could also provide submissions “for the mediator’s eyes only”.  The mediator would then first conduct private, telephonic pre-mediation sessions with each party “to answer questions and set expectations.”  The parties would agree to a mediation time frame, “which in most cases should not exceed two business days.”
  • The mediation would be conducted at a mutually-agreed-upon and neutral location, and all attendees would sign a confidentiality agreement.  OFCCP advises that the mediation should include key decision makers – at least by telephone – who should be available to provide guidance and expertise for the duration of the mediation.

While no contractor wants to find itself in this position, the Pre-Referral Mediation Program appears to offer contractors at least a more formalized opportunity to resolve allegations of discrimination with the assistance and objective input of a neutral mediator.

Stay tuned for additional blog posts as we learn more about the Program.

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Photo of Laura A. Mitchell Laura A. Mitchell

Laura A. Mitchell is a Principal in the Denver, Colorado, office of Jackson Lewis P.C. She is a member of the firm’s Affirmative Action and OFCCP Defense practice group as well as the firm’s Pay Equity Resource Group. She is also on the…

Laura A. Mitchell is a Principal in the Denver, Colorado, office of Jackson Lewis P.C. She is a member of the firm’s Affirmative Action and OFCCP Defense practice group as well as the firm’s Pay Equity Resource Group. She is also on the leadership team for the firm’s Government Contractor Industry Group.

Her practice is focused on representing government and non-government contractors in OFCCP matters, preparing for and defending OFCCP audits, and counseling employers on issues stemming from OFCCP regulations. Ms. Mitchell personally oversees the development of hundreds of AAPs each year and is intimately involved in the defense of numerous OFCCP audits. She also spends significant time counseling companies in connection with conducting pay equity analyses as well as government contractor employment obligations.

Ms. Mitchell is the editor and a principal contributor of The Affirmative Action Law Advisor blog and frequently presents on pay equity, affirmative action compliance, OFCCP enforcement trends, and government contractor obligations.

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