As part of its strategic enforcement, OFCCP will strengthen the effectiveness of compliance evaluations and promote greater contractor compliance

The Office of Federal Contracts Compliance Programs (OFCCP) issued its second directive of the year, DIR 2022-02, Effective Compliance Evaluations and Enforcement, to provide updated guidance on agency compliance evaluation policies. OutSolve is giving a free webinar to discuss these directives and give guidance on how contractors should prepare. Register here.   

Directive’s Key Points

• Increases accountability through the AAP certification process. Covered contractors annually certifying compliance with their AAP obligations are confirming that they have developed and maintained complete AAPs.
• Outlines the contractor’s obligations regarding timely submission of complete AAPs and support data, supplemental information, and access to employees, applicants, and other witnesses. OFCCP may grant an extension for data submission in the “event of extraordinary circumstances,” some of which have been identified in the directive.
• Addresses the agency’s scheduling procedures to identify a “broader universe of contractors and subcontractors.” OFCCP will continue to post a Corporate Scheduling Announcement Letter (CSAL) but will no longer delay scheduling contractors for 45 days after the issuance of the CSAL.

OFCCP has outlined the following compliance evaluation and strategic enforcement objectives:

• Conducting comprehensive compliance evaluations.
• Promoting a proactive approach to compliance where covered contractors conduct self-audits of their employment systems, policies, and practices to identify and resolve issues.
• Implementing a cross-regional approach to conducting multi-establishment compliance reviews.
• Promoting open communications by each party, OFCCP, and contractor, to facilitate the resolution of violations.

OFCCP feels that the directive will “strengthen OFCCP compliance evaluations and reduce delays by promoting the timely exchange of information.”

The directive rescinds and replaces DIR-2018-06 (Contractor Recognition Program), DIR 2018-08 (Transparency in OFCCP Compliance Activities), DIR 2020-02 (Efficiency in Compliance Evaluations), and DIR 2021-02 (Certainty in OFCCP Policies and Practices) and supersedes any conflicting procedures in the Federal Contractor Compliance Manual (FCCM). By rescinding DIR 2021-02, Certainty in OFCCP Policies and Procedures, OFCCP will no longer be committed to an “ongoing review on at least an annual basis of all of its policies and procedures.” Instead, OFCCP will update policies and practices as they feel appropriate.

OutSolve's Take

We are seeing a clear message beginning to take form based on the recent Directives, Proposed Rules, and initiatives:

• Directive 2022-02 – New Compliance Evaluation Expectations,
• Directive 2022- 01 announcing Contractors may have to provide OFCCP with a complete copy of their pay equity audits,
• The proposed rule to rescind pre-enforcement procedures,
• The expected rule from the Federal Acquisition Regulatory Council to enhance pay equity and transparency,
• The upcoming requirement to certify affirmative action plans through the Contractor Portal

The steps and actions were taken by Jenny Yang, Director-OFCCP, to send a clear message to federal contractors: BE PREPARED and remember that certifying your affirmative action plan begins March 31, 2022. 

OFCCP is stepping up its enforcement efforts by eliminating previous rules and regulations that hampered its processes and stating that it has greater access to a federal contractor’s compliance efforts and data. Their efforts are further strengthened through greater visibility of the entire federal contractor landscape via the Contractor Portal. A contractor will be certifying their affirmative action plans have been developed and implemented. Therefore, there should be no delay in submitting the plan and all the supporting data within the 30-day audit submission deadline.

We emphasize the importance of proactive compliance to encourage timely AAP preparation but also to ensure audit readiness. Conducting a mock audit is an effective tool to check the status of each compliance requirement. It will uncover any areas that are lacking or not compliant so that you can take proactive steps to resolve them in advance of an OFCCP compliance evaluation A proactive pay equity analysis is also an important self-audit activity. It can demonstrate a federal contractor’s commitment to equal pay. It can also address the requirement to conduct an in-depth analysis of compensation systems to determine whether there are gender-, race-, or ethnicity-based disparities, 41 CFR 60-2.17(b)(3).

OutSolve can provide additional information, suggestions, and assistance in being better prepared. Please register for our upcoming webinar to stay prepared. We will continue to monitor any new information regarding OFCCP’s Directives. For further information or assistance, contact your OutSolve Consultant or OutSolve directly at 888-414-2410 or at info@outsolve.com.