On December 10, 2020, OFCCP published its “Nondiscrimination Obligations of Federal Contractors and Subcontractors: Procedures To Resolve Potential Employment Discrimination” (the “Rule”). The Rule was welcomed by the contractor community, as it established important procedural and substantive requirements before OFCCP can issue discrimination findings. Among other things, the Rule sets forth clear parameters for what OFCCP has to establish in order to pursue discrimination findings, and provides for transparency in the compliance evaluation process to ensure contractors understand the bases for OFCCP’s preliminary findings and to foster dialogue to avoid erroneously-based Notices of Violation (“NOVs”).
On March 21, 2022, the agency announced it will be proposing amendments to the Rule as well as other regulatory changes. These proposed changes would roll back many of the Rule’s safeguards in order to, as Director Jenny Yang explained, lift “constrain[ts on] OFCCP’s broad enforcement discretion.” As detailed below, the proposed rulemaking would, among other things:
eliminate evidentiary requirements for the issuance of pre-determination notices (“PDNs”) and NOVs;
eliminate the requirement that PDNs be approved by the OFCCP Director before issuance;
permit OFCCP to issue NOVs for violations not included in PDNs; and
reduce contractors’ time for responding to PDNs by half.
It is clear from the proposed rulemaking that the Biden Administration’s OFCCP wishes to...
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