October 19, 2021

Volume XI, Number 292

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October 19, 2021

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October 18, 2021

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OFCCP Issues Certainty Directive

Quick Hit:  On December 15, 2020, OFCCP announced the release of Directive 2021-02Certainty in OFCCP Policies and Practices (the “Directive”).  The Directive generally “reaffirms” a number of certainty initiatives previously announced in agency publications, such as timely and efficient progress of compliance evaluations, professional conduct by OFCCP staff, and neutral scheduling of compliance evaluations.  The only additional commitments made by the agency in the Directive are to conduct ongoing reviews of its policies and practices to ensure they are clear and certain to the stakeholder community, and to provide a process by which contractors can seek clarification or disclosure of a policy or practice to ensure greater certainty.

More Detail:  In 2018, OFCCP adopted the principles of Certainty, Efficiency, Recognition, and Transparency (the “CERT Principles”).  OFCCP subsequently issued three directives related to the CERT Principles – Directive 2018-03Transparency in OFCCP Compliance ActivitiesDirective 2018-06Contractor Recognition Program, and Directive 2020-02Efficiency in Compliance Evaluations.  The Directive is the final directive related to the four CERT Principles. Its stated purpose is “[t]o reaffirm OFCCP’s commitment to a number of certainty initiatives and principles, and establish a process to facilitate the continued provision of clarity and certainty in OFCCP policies and practices.”

The Directive incorporates and attaches guidance the agency previously published entitled “What Federal Contractors Can Expect” (referred to as the “Contractors Bill of Rights”).  In that document, OFCCP set forth the following eight commitments:

  1. Access to Accurate Compliance Assistance Materials
  2. Timely Responses to Compliance Assistance Questions
  3. Opportunities to Provide Meaningful Feedback and Collaborate
  4. Professional Conduct by OFCCP’s Compliance Staff
  5. Neutral Scheduling of Compliance Evaluations
  6. Reasonable Opportunity to Discuss Compliance Evaluation Concerns
  7. Timely and Efficient Progress of Compliance Evaluations
  8. Confidentiality

Accordingly, the Directive does little more than repackage prior commitments in a more formal way.  The Directive, does however, break some new ground, providing that “the agency is now adding a commitment to conduct ongoing reviews of its policies and practices to ensure they are clear and certain to the stakeholder community, and to provide for a process by which a member of the stakeholder community can seek clarification or disclosure of a policy or practice to ensure greater certainty.”

The Directive also highlights the following agency actions as evidence of its focus on increasing certainty:

The promulgation of the agency’s final rule on Nondiscrimination Obligations of Federal Contractors and Subcontractors: Procedures to Resolve Potential Employment Discrimination.

 

© 2021 Proskauer Rose LLP. National Law Review, Volume X, Number 351
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About this Author

Guy Brenner, Labor Attorney, Proskauer Rose, arbitration proceedings Lawyer
Partner

Guy Brenner is a partner in the Labor & Employment Law Department and co-head of the Non-Compete & Trade Secrets Group. He has extensive experience representing employers in both single-plaintiff and class action matters, as well as in arbitration proceedings. He also regularly assists federal government contractors with the many special employment-related compliance challenges they face.

Guy represents employers in all aspects of employment and labor litigation and counseling, with an emphasis on non-compete and trade secrets issues,...

202-416-6830
Caroline L. Guensberg Associate Labor & Employment Employment Litigation & Arbitration

Caroline Guensberg earned her J.D. from George Washington University Law School, graduating with honors. While attending law school, Caroline was a notes editor of the Federal Circuit Bar Journal and had her note published in the journal. Caroline was also a member of the Alternative Dispute Resolution Board and served as a writing fellow and a dean’s fellow. In addition, Caroline worked as a legal intern for the United States Equal Employment Opportunity Commission and the Federal Mine Safety Commission.

Prior to joining Proskauer, Caroline was a judicial clerk for the Connecticut...

202-416-5873
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