The Office of Federal Contract Compliance Programs issued a Final Rule that rolls back various enforcement procedures codified during the Trump Administration. While the Final Rule retains the agency’s use of the Predetermination Notice (PDN) and Notice of Violation (NOV) in situations where it alleges that a contractor has engaged in discriminatory practices, it rescinds numerous definitions and criteria that were essential for contractors in understanding the nature of the OFCCP’s claims.

The OFCCP justifies these changes by asserting that the regulations issued in 2020 “imposed inflexible evidentiary requirements early in the agency’s compliance evaluation process and attempted to codify complex definitions for ‘qualitative’ and ‘quantitative’ evidence and other standards. These evidentiary standards and definitions hindered OFCCP’s ability to pursue cases with merit and diverted agency and contractor resources away from addressing discrimination.”

The primary changes – none of which are helpful for contractors – include the following:

• Reduces the time to respond to a PDN from 30 days to 15 days.
• Eliminates all of the evidentiary requirements that OFCCP must demonstrate before issuing a PDN or NOV.
• Removes the prerequisite that OFCCP provide contractors with “sufficient detail to allow contractors to investigate allegations and meaningfully respond.”
• Rescinds the obligation for OFCCP to produce its statistical models and variables if requested by the contractor.
• Erases OFCCP’s duty to address the contractor’s substantive responses and defenses raised to a PDN and NOV.

The agency provides a “crosswalk” summarizing the differences between the Trump 2020 Rule and these new regulations.

The Final Rule is effective September 5, 2023, and will apply to any pre-enforcement notices issued by OFCCP after that date. The 2020 Rule was heralded by contractors as a welcomed sea change from an agency notorious for “playing gotcha” by alleging discrimination without sharing the basis of its findings and then coercing contractors into substantial settlements to avoid protracted enforcement proceedings. That change was drastically short-lived, and we now revert back to the unregulated and undefined enforcement procedures of before.