In case any of you have been wondering, OFCCP is not slowing down amidst the COVID-19 pandemic.  While the Agency has been thoughtful and reasonable in extending response times for audits and even granting a National Interest Exemption for new contractors helping respond to the pandemic, OFCCP continues to schedule new audits, now with newly approved revised scheduling letters, as well as issue new guidance.

And today is no exception as the agency announced the release of three new directives:

In Directive 2020-02, which becomes effective 4/17/2020, OFCCP has set a goal to complete audits within 180 days where there are no indicators of discrimination, or to issue a Pre-Determination Notice (PDN) within one year from the issuance of the scheduling letter where discrimination indicators exist.

As a caveat, these goals assume “the contractor fully cooperates with the compliance review, including timely submissions of all documents and records and providing prompt access to all interviewees and premises requested by OFCCP.”

The Directive notes OFCCP will monitor audit progress through its Compliance Management System (CMS), which will provide national leadership “detailed monthly reports” of audit progress.   From an operational perspective, the Directive requires Compliance Officers to provide contractors with a status update every 30 days.

While some contractors choose not to “poke the bear” when audits languish, the Directive also institutes a limited process for contractors to essentially complain about the length of an audit.  If a contractor “has generally provided all information requested by OFCCP,” the contractor has the option of first asking the Regional Director to address a delay where:

  • A compliance evaluation remains open for one year from the day the contractor received the scheduling letter, without the issuance of a PDN; or
  • A compliance evaluation remains open for two years and has not been referred to the Office of the Solicitor.

If the Regional Director does not resolve the delay, the contractor must “petition” the Director with a copy to the Ombudsman.  “The Ombudsman will then review the matter and report back findings to the Director, who will make a determination in consultation with the career Deputy Director, Director of Enforcement, and Regional Director as to how to proceed.”

We will bring you insights on the other directives in the coming days so, as always, stay tuned for more.