October 19, 2020

Volume X, Number 293

October 19, 2020

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OFCCP Touts the Success of its Early Resolution Procedures

To increase its efficiency in ensuring the regulatory compliance of supply and services contractors, the OFCCP implemented Early Resolution Procedures (ERP) in 2018. The ERP allows contractors to proactively correct violations during compliance evaluations and quickly enter into agreements with the OFCCP without incurring the time and expense of a full compliance evaluation. The ERP requires compliance officers to resolve non-material violations that can be corrected immediately during a desk audit if there are (1) no additional indications of discrimination violations; (2) no evidence of a lack of good faith; and (3) no immaterial technical violations.

For material technical violations, including recordkeeping violations and applicant tracking deficiencies, the agency resolves audits by offering an Early Resolution Conciliation Agreement with Corporate-Wide Corrective Action (ERCA). The ERCA requires contractors to review all of their establishments, correct any violations, and submit progress reports with the results of their efforts. Contractors agreeing to the terms of the ERCA will avoid a new compliance evaluation for five years. If a compliance officer discovers material violations involving discrimination during a desk audit, the OFCCP will prepare a refined analysis to confirm the results of the desk audit and offer an ERCA.

Since the implementation of the ERP in 2018, the agency has signed 18 ERCAs, covering about 312,000 employees under monitoring and reporting at over 850 contractor establishments. The ERCAs have resulted in the payment of $31 million in back pay, and an additional $5 million in salary adjustment commitments. The agency projects that it will have an additional 30 ERCAs signed by September 2020, securing more than $50 million in back pay. Moreover, the ERP contributed to a reduction in the aged case rate from 22.8% in 2018 to 18.1% in 2019 and to 12% in March 2020, which met the agency’s efficiency goal.

The success of the ERP has positive implications for contractors. Contractors have an opportunity to correct violations quickly during desk audits and, if they enter into an ERCA, may provide assurance against compliance evaluations for five years.  It also allows contractors to avoid the process of having to receive Predetermination Notices or Notices of Violation and proceed directly to conciliation, minimizing the potential impact of multiple violations. Contractors should consider taking advantage of these procedures to quickly resolve any compliance irregularities.

© Polsinelli PC, Polsinelli LLP in CaliforniaNational Law Review, Volume X, Number 183


About this Author


Tony Torain is committed to providing reliable counsel to strategically solve client matters and address their litigation needs. He represents companies in connection with all types of employment and labor disputes, including wrongful discharge and claims based upon:

  • The National Labor Relations Act
  • Title VII of the Civil Rights Act
  • The Americans with Disabilities Act
  • The Age Discrimination in Employment Act
  • The Family and Medical Leave Act
  • The Fair Labor Standards Act
  • The Occupational Safety and Health Act...
Conne Bertram Government Contract Lawyer Polsinelli Law Firm

Connie focuses her practice on whistleblower, trade secrets, government contractors and employee mobility counseling and litigation. She frequently conducts confidential internal investigations involving executive-level employees, including alleged fraud, theft or misuse of company data, trade secrets, sexual harassment and code of conduct violations. She routinely counsels, investigates and litigates restrictive covenant and trade secrets disputes between employers and former employees.

Connie has defended complex whistleblower, trade secrets and restrictive covenant litigation across the United States, including claims brought under Sarbanes-Oxley, Dodd-Frank, the False Claims Act and other federal and state employment and whistleblower provisions. Connie also advises clients regarding the development and implementation of effective whistleblower and business ethics policies and programs, the investigation of whistleblower complaints, and the handling of current employees who have “blown the whistle.”

Additionally, Connie advises federal government contractors and subcontractors on the many unique employment, affirmative action and other compliance issues that arise in the government contracts setting, including:

  • Investigating and defending False Claims Act and other whistleblower complaints
  • Conducting internal EEO and pay equity audits and investigations
  • Advising contractors and subcontractors with respect to all aspects of Office of Federal Contract Compliance Programs (OFCCP), Service Contract Act (SCA), and Davis-Bacon Act compliance and defending OFCCP and Department of Labor audits and enforcement proceedings

Clients Connie represent include domestic and multinational organizations in the defense, energy, technology, food service, professional services, real estate and health care industries.

A frequent speaker on a variety of labor and employment, litigation and government contractor compliance issues, Connie regularly speaks at programs, seminars and training conferences concerning the whistleblower provisions of the FCA, SOX and Dodd-Frank, OFCCP compliance, pay equity issues, steps employers should take to address the #metoo movement, sexual harassment and whistleblower policies and investigations, and the development and use of forensic data in litigation. She presents at national conferences and conventions concerning these and other topics, including the American Bar Association Annual Conference, the Industry Liaison Group and the Urban Land Institute. She has been quoted on these and other topics by the Wall Street Journal, the Washington PostLegal TimesCompliance WeeklyLaw360Corporate CounselBloomberg LawBloomberg Business WeekSHRMHR DriveACC and Human Resources Executive.

Connie is the author of Sarbanes-Oxley: A New Whistle Stop for Whistleblowers published in the Labor Lawyer. She authors chapters regarding employment law for the D.C. Bar Manual and is the author of Chamber’s Regional Guide: Employment Law – District of Columbia