The Department of Labor has recently unveiled a final rule, titled "Pre-enforcement Notice and Conciliation Procedures," which aims to modify the existing rule by the Office of Federal Contract Compliance Program (OFCCP) called "Nondiscrimination Obligations of Federal Contractors and Subcontractors: Procedures to Resolve Potential Employment Discrimination" which took effect December 10, 2020. Additionally, the agency has developed a crosswalk to compare the 2020 rule with the anticipated 2023 rule. The 2023 final rule has been specifically designed to provide the OFCCP with a more streamlined, efficient, and flexible process in order to effectively investigate cases of discrimination.

One significant change brought about by this rule is the removal of the previous definitions of "qualitative and quantitative evidence." This allows the OFCCP to pursue cases that hold potential merit. Furthermore, it enables the agency to share discrimination-related findings with contractors during various stages of the compliance evaluation process, giving them an opportunity to respond.

Here are the key changes introduced by this new rule:

1. It provides clarification on the "reasonable efforts" standard that the OFCCP must adhere to when attempting to achieve compliance through conciliation.

2. It establishes the requirement to use the Pre-determination Notice (PDN) in cases where preliminary findings of potential discrimination are identified.

3. It eliminates the need for the OFCCP Director or acting agency head to approve the PDN prior to its issuance. However, the current procedure of the OFCCP necessitates a review by the national office.

4. It reinstates the 15-calendar day response period for the PDN, with the possibility of extensions for valid reasons.

5. It retains the option of expedited conciliation.

6. It permits the OFCCP to identify additional violations through subsequent Notice of Violations (NOV) or Show Cause Notices without requiring amendments to the PDN or original NOV.

7. It establishes that the OFCCP can issue Show Cause Notices without initially providing a PDN or NOV in cases where the contractor has denied access to premises, records, witnesses, or other relevant information.

These changes are aimed at enhancing the effectiveness and efficiency of the OFCCP's efforts in combating employment discrimination.

The OFCCP issued a press release on the rule. 

Staying informed of OFCCP's changes to the process for investigating discrimination is crucial for all federal contractors. The changes noted above will impact the way the OFCCP will conduct compliance evaluations and communicate findings. OutSolve stands ready to assist in these reviews. For further information on how OutSolve can help you stay compliant and reduce risks, please contact us. 

Contractors with registered and certified AAPs or who contacted the OFCCP Contractor Portal by June 29 are within compliance.

Construction contractors with contracts over $10,000 were selected, but OFCCP will exhaust prior CSAL lists before selecting contractors from this new list.

Federal contractors and subcontractors must begin using the Voluntary Self-Identification of Disability Form for all applicants and employees by July 25, 2023.

Second notice in the Federal Register changes the public comment period on proposed changes to the OFCCP audit scheduling letter and itemized listing.

OFCCP Megaproject briefing for contractors with construction projects over $35 million scheduled for April 19, 2023.

Construction primes or subcontractors with federal funded projects valued at $35 million+ and lasting at least one year should be prepared for OFCCP scrutiny 

OFCCP Contractor Portal will remain open through June 29th for contractors to certify their AAP compliance; failure to do so may lead to an upcoming audit.

OFCCP briefing scheduled for March 31, 2023, when the rescission becomes effective