OFCCP Submits Proposed Regulation Requiring Issuance of Pre-Determination Notices
In a welcome turn for federal contractors, OFCCP last week submitted a proposed regulation to codify Directive 2018-01 – Use of Predetermination Notices (PDN). The regulation would require OFCCP to issue a Predetermination Notice (PDN) in every audit summarizing the Agency’s preliminary “discrimination” findings before issuing a Notice of Violation (NOV).
Regular issuance of PDNs, after approval from the Solicitor’s Office and the National Office of OFCCP, provides transparency to contractors and facilitates resolution of alleged violations before OFCCP issues an NOV.
The proposed regulation is not, yet, publicly available but can be tracked at the Office of Information and Regulatory Affairs (OIRA): RIN 1250-AA10. Given the current status – awaiting for approval for publication in the federal register for public comment – we do not know what the actual details of the proposal will encompass.
By way of background, OFCCP issued Directive 2018-01 in February 2018, as interim guidance regarding PDNs until it updated the Federal Contractor Compliance Manual (FCCM). The Directive provides that rather than leaving the issuance of a PDN to the discretion of regional and district OFCCP offices, they must issue PDNs in some instances. The Directive also provides oversight of regional and district office discrimination allegations via a mandatory pre-issuance review of all PDNs by the regional Office of the Solicitor and the OFCCP National Office.
In October 2019, President Trump issued Executive Order 13892 – Promoting the Rule of Law Through Improved Agency Guidance Documents – making it more difficult for OFCCP and other agencies to issue guidance document without public review and comment. And also removing the use of sub-regulatory guidance as the basis for enforcement actions. The Executive Order favors regulation instead of guidance due to the requirement of rigorous government review, as well as public notice and comment before a regulation may go into effect. Compliance with this Executive Order as well as providing certainty and transparency in enforcement are likely the driving force behind this proposal.