OFCCP Continues Increased Transparency and Certainty by Announcing Use of Opinion Letters and Help Desk
As we reported on Friday, November 30, OFCCP began it’s 2019 fiscal year by releasing a rash of new directives. On Monday, we looked at the rescission of Obama Administration’s Active Case Enforcement (ACE) directive. Yesterday, we reviewed OFCCP’s new guidance on Early Resolution Procedures. Today we review the third Directive – Directive 2019-03: Opinion Letters and Help Desk.
Under Directive 2019-03 (effective November 30, 2018), OFCCP continues its trend towards increased transparency and certainty – two of the Agency’s four pillars described by Acting Director Leen earlier this year – by unveiling two new agenda items. First, OFCCP announced it would begin issuing Opinion Letters, and second, OFCCP plans to modify and improve the convenience of its Help Desk resources for easier use by the regulated community.
As Director Leen hinted at this summer, OFCCP will be following in the footsteps of other Agencies within the Department of Labor by using Opinion Letters to address issues that are unclear in the regulations and answer other compliance questions. Specifically, OFCCP intends to use its opinion Letters to provide
fact-specific guidance about OFCCP’s jurisdictional coverage or application of guidance.
The precise process for requesting an Opinion Letter is not yet available, but the Directive provides both employers and employees may request Opinion Letters, the requestor(s) will remain anonymous, and the resulting guidance may address an “individual contractor, an industry, a category of contractors, all contractors as well as a particular category of employees such as Protected Veterans.”
Prior to issuance, the Office of the Solicitor will review the guidance to ensure consistency with applicable laws and regulations. Once issued, these Letters are intended to reduce uncertainty for compliance in unusual situations.
However, as might be expected, Opinion Letters are not a get-out-of-jail-free-card. The Directive specifies that OFCCP will not issue Opinion Letters that address matters currently under litigation or for a contractor currently undergoing a compliance review.
OFCCP already provides technical assistance to contractors who call or e-mail its Help Desk for assistance with technical compliance issues. Additionally, OFCCP occasionally releases official FAQs along with responses to provide guidance on repeated requests. In order to improve the quickness and ease of addressing compliance issues., OFCCP announced through the Directive that it would be expanding its Help Desk functionality by
making certain Help Desk inquires and responses dynamically available and searchable as a self-service option on OFCCP’s website.
Directive 2019-03 sends a twofold message to the contracting community. First, increased transparency and public information may (and theoretically should) assist employers in resolving sticky issues not clearly addressed on the face of the regulations. Second, employers have an incentive to stay apprised of the latest developments. As the Directive notes, during an enforcement action,
OFCCP will consider whether a contractor has acted consistently and in good faith with an Opinion Letter, Directive, FAQ, Help Desk answer, or other OFCCP guidance… .
While sub regulatory, and without the force of law, the message is clear; OFCCP may give more of the benefit of the doubt to contractors who rely on the Agency’s guidance.
As we have previously reported, OFCCP announced plans to increase the number of audits significantly in 2019 as well as institute compliance verification procedures. This Directive reiterates the importance of getting up to speed on regulatory obligations and preparing now for the greater likelihood of facing a compliance review.
Stay tuned, as Jackson Lewis will continue to monitor and analyze new developments as OFCCP implements this new directive and issues its first Opinion Letters.
James Mackey contributed to this piece.