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News & Press: EEO News

OFCCP Issues Directive For Increased Audit Transparency

Tuesday, March 20, 2018   (0 Comments)
Posted by: Jeff Davies and Marife Ramos
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The OFCCP is seeking to rebuild strained relationships with federal contractors through increased transparency in preliminary findings of discrimination in compliance evaluations. The new directive (DIR 2018-01), which has an effective date of February 27, 2018, makes it mandatory for contractors to receive a Predetermination Notice (PDN) prior to being issued a Notice of Violation (NOV). Previously, PDNs were used primarily in situations of systemic discrimination, and OFCCP regional and district offices were granted discretionary authority related to their use.

In recent years, contractors have felt that a lack of OFCCP disclosure has left them with little recourse to defend themselves against allegations of discrimination prior to receiving NOVs. At a stakeholder’s meeting with the OFCCP in late February, the desire for a more open dialogue between the OFCCP and contractors regarding initial findings of discrimination was raised. It was suggested that PDNs be used to allow contractors the opportunity to present additional evidence contrary to the preliminary findings before receiving a Notice of Violation. Federal contractors will now have 15 days following the receipt of a PDN to submit rebuttal evidence that may dissuade the OFCCP from issuing a charge of discrimination.

It is noteworthy that this change in approach comes on the heels of an Administrative Law Judge’s (ALJ) decision in September against the OFCCP in an ongoing compliance evaluation of Oracle’s California headquarters. In summary, the judge agreed with Oracle’s petition that it was proper for the OFCCP to disclose, upon request, the evidence (i.e. all documents, including statistical analyses, interview notes, and other factual basis) which were relied upon to form the allegations of discrimination.

The Office of Federal Contract Compliance Programs (OFCCP), a division of the U.S. Department of Labor, audits federal contractor adherence to Executive Order 11246, Section 503 of the Rehabilitation Act of 1973, and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974.

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