Directly in line with the U.S. Department of Labor’s Office of Federal Contract Compliance Program’s (OFCCP) new policy emphasis on agency transparency, accountability, efficiency and collaborative resolution, the OFCCP released three new helpful directives on November 30, 2018 concerning the agency’s investigative procedures and avenues for increased communication with federal contractors. The three directives, titled DIR 2019-01 (regarding “Compliance Review Procedures”), DIR 2019-02 (regarding “Early Resolution Procedures”), and DIR 2019-03 (regarding “Opinion Letters and Help Desk”) were issued to “provide guidance to OFCCP staff or federal contractors on enforcement and compliance policy [and] procedures.” While each directive serves its own unique regulatory function, together these directives represent OFCCP’s commitment to consistency in enforcement and cooperation with the federal contractor community. As a whole, they should be viewed as beneficial to contractors aiming to comply with the law, but minimize the “gotcha” approach recently favored by the agency.

DIR 2019-01, “Compliance Review Procedures” 

The first of the newly issued OFCCP directives, DIR 2019-01, concerns the manner in which the OFCCP conducts compliance reviews. The purpose of DIR 2019-01 was to rescind DIR 2011-01, an Obama-era policy issued in December of 2010. The previous policy, DIR 2011-01, issued by former Director Patricia Shiu, outlined the Active Case Enforcement (ACE) for Supply and Service (S&S) compliance evaluations. Under the ACE procedures, full OFCCP desk audits were required, and there was an increased frequency of mandatory onsite reviews. However, as a result, investigations were more thorough and the “overall processing time increased.[1]” These were trends that the current Acting Director, Craig Leen, aimed to address.

With the focus on increasing transparency and efficiency, starting in 2017, the OFCCP began posting its S&S scheduling list methodology and established procedures to shorten the time to complete a full desk audit. Citing these procedural changes, along with the facts that the OFCCP has embedded the “valuable components of ACE” into its standard operating policies, and that the Federal Contract Compliance Manual (FCCM) was updated in August 2014 to incorporate key aspects of ACE, the OFCCP concluded that “there is no longer the need for the ACE directive as a freestanding guidance document.” [2]

In addition to rescinding DIR 2011-01 as an independent guidance document, DIR 2019-01 also lays out specific procedural policies that aim to clarify the scope of investigations. Specifically, DIR 2019-01 notes that those federal contractors that have previously undergone a compliance evaluation “will be exempt from another neutrally scheduled compliance evaluation, for 24 months from the date of closure of the compliance evaluation or the date OFCCP accepts a final progress report,”[3] unless a separate OFCCP policy mandates such an evaluation, or unless a different exemption period is agreed upon by OFCCP and the contractor. Moreover, DIR 2019-01 limits the scope of onsite investigation to “the nature or scope of the indicators or concerns that triggered the onsite review.”[4]

Click to read the full article: OFCCP Issues Contractor Friendly Directives That Aim to Streamline Investigative Processes and Decrease Contractor Guesswork.

[1] https://www.dol.gov/ofccp/regs/compliance/directives/dir2019_01.html
[2] https://www.dol.gov/ofccp/regs/compliance/directives/dir2019_01.html
[3] https://www.dol.gov/ofccp/regs/compliance/directives/dir2019_01.html
[4] https://www.dol.gov/ofccp/regs/compliance/directives/dir2019_01.html