The OFCCP put out a new enforcement directive abolishing the longstanding tradition of allowing contractors to protect self-conducted audits as attorney-client work-product. Here's how that will impact contractors.
With little fanfare, on March 15, the Office of Federal Contract Compliance Programs (OFCCP) put out a new enforcement directive, 2022-01, that abolishes the longstanding tradition of allowing contractors to protect self-conducted audits as attorney-client work-product. OFCCP is a lesser-known agency in the DOL that oversees affirmative action requirements for federal contractors.
Many federal contractors will work with their outside counsel to conduct pay audits so they can identify disparities that need correcting and remain in compliance with federal anti-discrimination requirements. Ideally, they can adjust their compensation practices to address any problems that might be found. These audits, obviously, contain highly sensitive and confidential data and analyses which is why they are conducted under attorney-client relationships to establish the privilege that protects them from being disclosed. This privilege has a long tradition of being recognized by OFCCP, as well as other agencies where companies are being audited or investigated. Attorney-client privilege also enjoys broad bipartisan support in Congress.
Not only does the enforcement directive make clear OFCCP will no longer recognize attorney-client privilege, but if a contractor asserts privilege...
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