OFCCP dismantles The Four Pillars

“CERT” is now in the history books.  

During the Trump Administration under former Director Craig Leen, the Office of Federal Contract Compliance Programs instituted a series of initiatives and policy changes that Leen called “The Four Pillars” of the agency. These pillars were Certainty, Efficiency, Recognition, and Transparency, or “CERT” for short. The purpose of the pillars was to provide these much needed principles to contractors in their interactions with the OFCCP. Each pillar had its own Directive, and you can read our prior descriptions of these Directives here, here, and here.

With the stroke of a pen, current Director Jenny Yang rescinded the four Directives and replaced them with Directive 2022-02, “Effective Compliance Evaluations and Enforcement.”

One of the most significant changes in OFCCP policy outlined by the Directive includes a new approach to handling compliance reviews for multi-establishment contractors. The OFCCP is

[i]mplementing a coordinated, cross-regional approach to conducting multi-establishment compliance reviews. Where an employer has multiple establishments scheduled for review pursuant to OFCCP’s neutral scheduling methodology, OFCCP will coordinate evaluations of common policies and patterns across establishments. This coordination can benefit more workers where the contractor agrees to remedy violations and revise practices or policies company-wide or across a broader group of establishments that have similar practices to those identified during compliance evaluations of the scheduled establishments.

This will subject contractors with multiple establishments to much broader and deeper investigations that can have wide-ranging consequences across an organization.

Other highlights of this new Directive include the following:

  • Contractors are no longer afforded an automatic 30-day extension for submitting AAPs during a compliance evaluation. Extensions will only be granted in “extraordinary circumstances,” such as for issues affecting key personnel (e.g, medical concerns, death, or unexpected absences or departures) or local or company-specific disasters. The OFCCP “may” request documentation to support an extension request and will consider each request on a “case-by-case basis.”
  • Although the agency will continue to post the Corporate Scheduling Announcement List (CSAL) of contractors that will be issued a Scheduling Letter, it will no longer provide a 45-day window of time between issuance of a CSAL and the scheduling of contractors on that list for compliance reviews.
  • The OFCCP will longer conduct an annual review of its policies and procedures because this is not “practical or necessary.” Going forward, the OFCCP will update its practices “as appropriate.”
  • The OFCCP will no longer share detailed information regarding its investigations and findings with contractors. However, when the agency requests supplemental information during a compliance review it “will reasonably tailor the request to the areas of concern, allow contractors a reasonable time to respond, and include the basis for the request.”
  • The OFCCP may extend investigations to cover a two-year period before the date of the Scheduling Letter, and the OFCCP may request information and records created after the date of the Scheduling Letter “to evaluate whether the practice [at issue] has continued.”
  • The OFCCP will expect contractors to provide detailed personal information, such as telephone numbers, mailing addresses, email addresses, and Social Security numbers for employees, former employees, and applicants. Contractors will not be permitted to serve as intermediaries for the OFCCP in arranging these interviews, and the OFCCP reiterates its longstanding practice of refusing to allow corporate representatives to attend non-managerial employee interviews (unless specifically requested by the employee). If a non-managerial employee requests the presence of a representative, the “OFCCP will discuss the presence of the representative with the interviewee privately to determine [whether there is] a conflict of interest or whether the interviewee feels pressured into having the person present. When the interviewee wants a personal representative present during the interview, OFCCP will first obtain written confirmation of the representation, including the contact information for the representative and the scope of the representative’s authority, if OFCCP does not already have the written confirmation.” (footnote omitted).

Clearly, there is a new sheriff in town at the OFCCP, and the slightly more contractor-friendly policies implemented during the Trump Administration are a thing of the past.

Contractors should be prepared for more thorough compliance evaluations across several establishments, less transparency from compliance officers (as also presaged by the recent move to rescind the Predetermination Notice regulations), detailed requests for more information with no meaningful explanation of the basis for the request, expectations that confidential compensation analyses be produced, and more difficult interactions with the agency.

Ensuring compliant programs and processes has always been important for contractors, but the OFCCP’s more aggressive enforcement policies demonstrate that placing a priority on organizational compliance is now more essential than ever.   

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