As anticipated, OFCCP has released its proposal to revise the Agency’s Rule on Nondiscrimination Obligations of Federal Contractors and Subcontractors: Procedures to Resolve Potential Employment Discrimination.  The final rule, published in November 2020, codified the used of The Predetermination Notice and the Notice of Violation as part of OFCCP’s enforcement activities.

In today’s message from OFCCP announcing the release of the Notice of Proposed Rulemaking (“NPRM”), OFCCP described the 2020 rule as “imposing inflexible requirements” and explained its belief that

[t]he rigid evidentiary standards and definitions imposed by the 2020 rule impede OFCCP’s ability to provide contractors with early notification of indicators of discrimination. They also unnecessarily divert agency and contractor resources away from addressing discrimination.

As a result, OFCCP is proposing to:

  • rescind these rigid evidentiary standards, while OFCCP would continue to issue a Predetermination Notice describing the preliminary indicators of discrimination and other potential violations.
  • clarify the use of the Predetermination Notice and the Notice of Violation as part of OFCCP’s pre-enforcement notice and conciliation procedures.
  • return the Predetermination Notice response period to the 15-calendar day period in effect prior to the 2020 rule (which OFCCP may extend for good cause).

The proposed rule also seeks to “retain the regulatory language regarding early resolution, which provides that contractors may waive notice procedures to enter directly into a conciliation agreement.”

We are in the process of digesting the NPRM and will be back with more details and insights in the coming days . . . stay tuned.