OFCCP seeks to undo Trump-era predetermination regs

So much for transparency!  

Today, the Office of Federal Contract Compliance Programs issued a Notice of Proposed Rulemaking that would largely rescind enforcement procedures codified in 2020 during the Trump Administration.

The proposed rule seeks to eliminate what the OFCCP now considers “rigid” and “inflexible” evidentiary requirements that were put in place in 2020 for the Predetermination Notice and Notice of Violation. The PDN is the OFCCP’s first formal opportunity to notify a contractor that it has found preliminary indicators of a violation. The agency uses the NOV to notify a contractor that it has found a violation. 

Before the 2020 regulations were issued, the OFCCP typically provided little, if any, information regarding the basis for its findings at the PDN and NOV stages. The 2020 regulations codified the evidentiary and information production standards that must apply. As we reported when the regulations were issued, the OFCCP is generally required to present "quantitative evidence of discrimination that has practical significance." For claims of disparate treatment, the OFCCP must show qualitative evidence of discriminatory intent. For claims of disparate impact, the OFCCP must identify a specific policy or practice causing the impact. The 2020 regulations were hailed by contractors as providing much-needed transparency to the OFCCP’s enforcement procedures. 

The proposed rule issued today would eliminate these standards from the OFCCP enforcement process. As its rationale for the changes, the OFCCP says that it

believes the 2020 rule’s inflexible evidentiary requirements mandate overly particularized and confusing evidentiary definitions that impede OFCCP’s ability to tailor the pre-enforcement process to the specific facts and circumstances of each case, delay information exchange with contractors, and create obstacles to remedying discrimination.

The OFCCP provides scant evidence regarding the basis for its belief that the 2020 regulations have impeded its enforcement efforts, stating only that it has had “time-consuming disputes with contractors over the application of the new requirements” and that “several contractors” have challenged the sufficiency of the evidence that the OFCCP had presented. (Yeah, contractors never did that before!)

Another significant proposed change is the rescission of the 30-day period for a contractor to respond to the PDN with its evidence and arguments in rebuttal. The OFCCP proposes reverting to the previous 15-day period “to promote greater efficiency.” Many contractors applauded the enlarged time frame provided by the 2020 regulations because responding to the OFCCP’s allegations of discrimination usually requires complex and sophisticated analysis, including the use of outside statistical experts. Preparing a substantive rebuttal in two weeks is not realistic for many contractors. The OFCCP does, however, indicate that it could extend the deadline if “good cause” is shown. 

If the 2020 regulations are substantially rescinded as proposed, the OFCCP would be able to return to its prior practice of alleging discrimination without providing contractors with the evidence on which it relies. However, the proposed regulations would still allow contractors the opportunity to engage in expedited conciliation by waiving the PDN or NOV process. 

Comments on the proposed regulations are due no later than April 21.

Our Affirmative Action Alert blog focuses on the latest news and topics affecting federal contractors and subcontractors and their compliance with affirmative action and other employment-related laws and regulations.  With breaking news, quick updates, and headlines on the Office of Federal Contract Compliance Programs and affirmative action issues, this blog is a great resource for in-house counsel, HR managers, and other compliance professionals.  Our blog is a companion to Constangy’s Affirmative Action newsletters, which address significant legislative, regulatory, and administrative proposals and changes.  Subscribe to both to stay current on these important topics!

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