OFCCP Issues Three Directives to Advance Director Leen’s Efficiency and Transparency Agenda
On April 17, 2020, OFCCP released three new directives that aim to advance outgoing Director Craig Leen’s longstanding focus on increasing the agency’s transparency and efficiency. The new directives are:
1. Directive 2020-02: Efficiency in Compliance Evaluations
2. Directive 2020-03: Pre-Referral Mediation Program
3. Directive 2020-04: Ombuds Service Supplement
Although these directives are agency policy statements that do not create binding legal rights or obligations, the issuance of these three directives is a promising sign to the contractor community that Director Leen’s agenda may continue following his eventual departure from the agency.
Directive 2020-02 – Efficiency in Compliance Evaluations
Directive 2020-02 is arguably the most important of the three new directives to contractors. The directive seeks to build on prior efforts to reduce the number of aged audits and expedite the resolution of OFCCP compliance evaluations. This has been one of Director Leen’s major priorities, and the directive notes that between FY 2018 and FY 2019 the agency reduced the average time to complete a compliance evaluation from 516 days to 399 days, a 23% reduction. The directive defines “aged cases” as those that have not resulted in administrative closure, a conciliation agreement, or referral to the Office of the Solicitor within two years, and states OFCCP’s new goal of reducing the number of aged cases below 15% of the agency’s total case load.
The new directive implements both internal and external measures to reach this goal. Internally, the agency will seek to close compliance evaluations within 180 days of the issuance of a Scheduling Letter if there are no preliminary findings of discrimination and issue a Pre-Determination Notice (PDN) within one year of the Scheduling Letter if OFCCP finds discrimination. OFCCP’s National Office will receive “detailed monthly reports” about the progress of aged evaluations. Regional directors will required to implement an action plan to expedite the completion of these evaluations. Compliance officers will also be required to provide monthly status reports to contractors on the progress of aged evaluations.
Externally, the directive provides contractors with a mechanism to escalate aged evaluations to the National Office’s attention. If an evaluation remains open for more than a year after the issuance of a Scheduling Letter without a PDN, or more than two years without referral to the Office of the Solicitor, contractors may petition the OFCCP’s Director and Ombudsman to review the evaluation. Prior to submitting a petition, the contractor must first confer with the applicable Regional Director about the evaluation. In response to a petition, the Ombudsman will review and report upon the status of the evaluation, and the Director will determine how to appropriately proceed.
Directive 2020-03 – Pre-Referral Mediation Program
Directive 2020-03 builds upon the Early Resolution Program created by Directive 2019-02 to seek amicably to resolve compliance evaluations short of enforcement actions. The directive creates a new, additional alternative dispute resolution program that will take place before findings of discrimination are referred to the Office of the Solicitor for review. Mediation will be conducted by members of the Ombudsman’s office or other neutral third parties agreed upon by the contractor and OFCCP. Importantly, the new mediation program is not a substitute for the agency’s current conciliation procedure that occurs between the issuance of a Notice of Violation and a Show Cause Notice. The directive reserves OFCCP’s right to dispense with the mediation requirement in cases where the alleged violations concern a contractor’s failure to provide OFCCP with access to records or information or in the “very rare case” where OFCCP elects to proceed directly to enforcement without the issuance of a Show Cause Notice due to the existence of “exceptional circumstances.”
Directive 2020-04 – Ombuds Service Supplement
This directive expands and clarifies the role of OFCCP’s Ombudsman. The Ombudsman is generally responsible for understanding and addressing the concerns of OFCCP’s stakeholders, addressing those concerns with the agency, and identifying potential areas for improvement. According to the directive, the Ombudsman is not a member of other OFCCP work teams and should not be influenced or incentivized based on other OFCCP divisions or the agency’s broader goals. The directive implements a new Protocol for the Ombudsman’s operations. The Protocol emphasizes the principles of confidentiality, neutrality, independence, and informality. Before contractors submit sensitive information or documents to the Ombudsman, however, they should consult with counsel to understand whether such materials may be subject to disclosure under FOIA or other applicable law.
These directives should provide contractors with some hope that Director Leen’s reforms will be institutionalized within OFCCP and will survive his departure from the agency. Contractors facing long-running, unresolved evaluations should consider whether the new procedures set forth in the directives may be effective in moving those evaluations towards a resolution.