Dear Director Yang:

The U.S. Chamber of Commerce strongly opposes the Department of Labor’s Office of Federal Contract Compliance Programs’ (“OFCCP”) Directive 2022-01, effective March 15, 2022, on the subject of Pay Equity Audits (“Directive”). It will have intended, direct, and negative consequences on the ability of contractors and subcontractors to conduct privileged pay analyses for the benefit of its diversity and inclusion initiatives, as well as in obtaining legal advice to ensure equal pay of its employees under the Equal Pay Act and Title VII of the Civil Rights Act of 1964. The Chamber also strongly objects to OFCCP authorizing this major policy change as an edict instead of as a proposal open to comment. The Department must withdraw this Directive.

OFCCP’s Directive is fatally flawed in the following ways:

• Contractors and subcontractors are not obligated to perform a “pay equity audit” under either the relevant statutes or the OFCCP’s existing regulations; the term “pay equity audit” is a creation of OFCCP and goes beyond the level of analysis required by law.
• In addition to mandating a pay equity audit (without statutory or regulatory authority or support), the OFCCP also claims the authority to deny these audits and related documents the protection of privilege universally accorded to such confidential analyses when they are prepared in the context of an attorney-client relationship, and one primary purpose was also providing legal advice or in...

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