OFCCP’s second Directive under the leadership of Director Jenny Yang addresses audit practices and rescinding four Directives issued by former OFCCP Director, Craig Leen. This Directive comes on the heels of another new Directive 2022-01-Pay Equity Audits and a notice of the Agency’s intention to rescind a Leen-era regulation – Nondiscrimination Obligations of Federal Contractors and Subcontractors: Procedures to Resolve Potential Employment Discrimination.
The more notable aspects of Directive 2022-02 – Effective Compliance Evaluations and Enforcement, include:
- Elimination of Extensions of Audit Submission Deadlines in all but “Extraordinary” Circumstances:
If you’ve gotten used to extra time for the often-heavy lift of retrieving and preparing AAP data for submission, those days are gone. “Where a contractor needs additional time, OFCCP may grant an extension” but now it will only be for “extraordinary circumstances.” Examples of extraordinary circumstances include, but are not limited to:
- Extended medical absences of key personnel;
- Death in the immediate family of key personnel;
- Localized or company-specific disaster affecting records retrieval such as a flood, fire, or computer virus;
- Unexpected military service absence of key personnel; and
- Unexpected turnover or departure of key affirmative action official.”
- Elimination of 45-Day Scheduling Delay after CSAL:
While OFCCP states it will continue to issue CSALs and disclose its audit selection methodology, “OFCCP may begin scheduling contractors upon the publication of the CSAL.” While the apparent intent of the CSAL is to provide advance notice, those who are scheduled for an audit on the heels of a new CSAL do not receive that benefit under this new Directive.
- Access to Witnesses:
OFCCP may decide to no longer going to rely on contractors for assistance in scheduling employee interviews. Rather, OFCCP establishes in this directive
OFCCP may directly contact [employees] without the contractor serving as an intermediary.
OFCCP asserts that this step is necessary “[t]o ensure witnesses are comfortable communicating with OFCCP without the fear of reprisal…”
During these investigations, OFCCP states it will request that contractors provide the agency with unredacted contact information such as telephone numbers, mailing addresses, email addresses, and even social security numbers for these individuals. The Directive does not address the lengths the Agency will go to ensure this information is kept secure.
- Contractor Portal “Certification” Means “Complete” AAPs:
The Directive also takes the opportunity to address the newly minted obligation for contractor certification in the newly developed OFCCP Contractor Portal. Notably, OFCCP’s Supporting Statement for the Contractor Portal states that certification entails:
- Entity has developed and maintained affirmative action programs at each establishment, as applicable, and/or for each functional or business unit. See 41 CFR Chapter 60.
The Contractor Portal is now live for certification and the required certification recites the above language. However, the new Directive appears to attempt to clarify, if not expand, the meaning of certification in the new Directive:
Through DIR 2022-02, OFCCP clarifies that when covered contractors use OFCCP’s Contractor Portal to register and annually certify compliance with their AAP obligations, they are certifying that they have developed and maintained complete AAPs.
The endnote to this sentence states: “For further details on the complete AAP components and obligations, see 41 CFR part 60-2, subpart B; 41 CFR part 60-300, subpart C; and 41 CFR part 60-741, subpart C.”
In addition to the foregoing, the Agency has rescinded four Directives that provided specific guidance for transparency and certainty in the OFCCP audit process, while vaguely reaffirming “its commitment to providing transparency, efficiency, and clarity…” without providing much substance or issuing revised guidance on how it intends to carry out that commitment.
The bottom line for covered federal contractor is that the current OFCCP administration is taking a more hardline approach to enforcement. While federal contractors are in favor of effective and efficient audits, it seems the current administration feels many of the advancements of the prior administration do not fit with or assist their enforcement agenda.