In the last three weeks alone, OFCCP has issued two significant Directives and a notice of proposed rulemaking, signaling its intent to be far more aggressive and less transparent in compliance evaluations than under the Trump Administration. These developments include:
- Issuing, on March 15, 2022, Directive 2022-01, providing OFCCP’s view that its regulations require contractors to perform quantitative analyses of their compensation practices each affirmative action plan (AAP) cycle and that those analyses cannot be withheld from OFCCP during audits, even if performed under attorney-client privilege;
- Publishing, on March 21, 2022, a Notice of Proposed Rulemaking (NPRM), seeking to rescind important evidentiary and procedural requirements for contractors before OFCCP issues Pre-determination Notices (PDNs) or Notice of Violations (NOVs) that were adopted by the previous OFCCP Director Craig Leen in November 2020;
- Releasing, on March 31, 2022, Directive 2022-02, rescinding Directives from the Trump Administration aimed at providing contractors more transparency, consistency, and clarity in compliance evaluations and indicating OFCCP’s intent to conduct more thorough audits with seemingly less transparency and cooperation.
Read our client alert.