OFCCP Issues a New Directive with Increased Burden on Employers

By Alison Lungstrum Macneill

On March 15, 2022, the Office of Federal Contract Compliance Programs (“OFCCP”) issued a Directive[1] addressing federal contractors’ obligations to analyze their compensation systems for impediments to equal employment opportunity and to turn over such analyses when under audit.[2]

The Directive, which rescinds four Directives issued under the Trump administration, implements procedural and substantive changes to OFCCP compliance.  Such changes include (1) reducing the time for contractors to respond to a scheduling letter; (2) broadening the scope of the OFCCP’s request for documents beyond the scope of the initial scheduling letter; (3) stating an intention to conduct more witness interviews, and reiterating its position that the contractor is not entitled to have counsel present in the agency’s interviews with former employees in most cases; (4) suggesting that the OFCCP will place enforcement priority on contractor self-auditing obligations to review and analyze their workforce data for potential impediments to equal employment opportunity; and (5) enhancing the OFCCP’s methodology for scheduling compliance evaluations in order to reach a  broader universe of contractors and subcontractors and identify those with greater risk factors.

Takeaway

The new Directive increases the burden on employers to maintain compliance with the OFCCP process and indicates that the OFCCP intends to act more aggressively in identifying and prosecuting alleged compensation discrimination during compliance audits.  Please contact Campbell Litigation for assistance navigating these changes and maintaining affirmative action plans throughout the year.

[1] Directive 2022-01, https://www.dol.gov/agencies/ofccp/directives/2022-01

[2] As part of their affirmative action obligations, the OFCCP requires federal contractors are required to perform an in-depth analysis of their total employment practices to determine whether and where impediments to equal employment opportunity exist, including conducting an in-depth analysis of their compensation systems to determine whether there are gender-, race-, or ethnicity-based disparities, as provided in 41 CFR 60-2.17(b)(3).3.