The Office of Federal Contract Compliance Programs (OFCCP) recently published a final rule titled “Pre-enforcement Notice and Conciliation Procedures.” This rule rescinds the evidentiary standards from the 2020 rule titled “Nondiscrimination Obligations of Federal Contractors and Subcontractors: Procedures to Resolve Potential Employment Discrimination,” which required specific pre-determination notice requirements and certain evidentiary standards. In a blog post, the OFCCP explains that the “new final rule restores flexibility to OFCCP’s pre-enforcement and conciliation procedures, promotes efficiency in resolving cases, strengthens enforcement and promotes alignment of the standards of Title VII of the Civil Rights Act of 1964.”
Although the final rule may provide more flexibility for the OFCCP, it only adds uncertainty for federal contractors. By way of background, the 2020 rule implemented evidentiary reforms that increased transparency to contractors about how OFCCP arrived at discrimination findings, something the agency would be required to do if it moved to enforcement. Among those reforms was the requirement that the OFCCP disclose to the contractor the evidence supporting any discrimination claims, and the requirement that the OFCCP issue a pre-determination notice (PDN) before a notice of violation (NOV).
Under the new final rule, however, the OFCCP can make discrimination findings without first providing contractors with the evidentiary basis for that finding. Indeed, the final rule eliminates important procedural safeguards like evidentiary requirements for PDNs and NOVs and the requirement that PDNs be approved by an OFCCP Director before they are issued. The new rule also permits the OFCCP to issue violations that are not included in the PDNs, and under the new rule, contractors will have half the amount of time to respond to a pre-determination notice as they did under the 2020 rule.
With an effective date of September 5, 2023, contractors will likely encounter a more aggressive OFCCP that is more focused on issuing discrimination violations than engaging in a true conciliation process aimed at correcting violations. Contractors should also anticipate a faster-moving process as compared to the typical pace of OFCCP investigations. Contractors will want to work with experienced counsel to both help avoid and respond to any issues arising under the new final rule.