Since the beginning of the Trump Administration, federal contractors have been waiting to see what changes the new administration would make to the Office of Federal Contract Compliance Programs (“OFCCP”). Thus far, the greatest change has been more style than substance, with OFCCP officials expressing a desire to have a better relationship with the government contractor community.  Late last month, however, OFCCP issued its first new directive since President Trump took office.  In announcing the change, OFCCP stated that the new policy is part of a broader effort to “increase transparency of preliminary findings with federal contractors, and to achieve consistency across regional and district offices.”

OFCCP’s new Directive 2018-01 (the “Directive”) requires OFCCP offices to adopt a uniform approach to Predetermination Notices (“PDNs”) in compliance evaluations. Pursuant to the new PDN, published with the Directive, OFCCP will:  (1) inform the contractor of the agency’s preliminary findings of employment discrimination; and (2) provide the contractor with 15 days to rebut OFCCP’s preliminary findings.

Prior to the Directive, OFCCP reserved use of the PDN for systemic discrimination cases. OFCCP also afforded regional and district offices the discretion to issue a PDN prior to issuing a Notice of Violation (“NOV”).  Under the new Directive, regional and district offices are required to issue PDNs for preliminary findings identified during the course of compliance evaluations, regardless of whether system discrimination is found.  The Directive also provides increased oversight by OFCCP’s national office of potential violations before a final decision is made.  Going forward, the appropriate regional Office of the Solicitor must review all PDNs before they are submitted to OFCCP’s national office for a review and final decision.

The Directive, which goes into effect immediately, will serve as an interim guidance until OFCCP amends its Federal Contract Compliance Manual.

Directive 2018-01 is a welcome development and the first concrete sign that OFCCP wants to do more than just talk about improving its relationship with the government contractor community. Many contractors have faced circumstances where, after months of silence, OFCCP suddenly issues an NOV during a compliance evaluation.  Because the contractor was not contacted before the issuance of the NOV, the NOV can be based on incorrect findings or assumptions that could have been corrected with additional input from the contractor.  However, once an NOV is issued, OFCCP is often reluctant to reconsider the findings in them.  The Directive provides a mechanism to facilitate the exchange of information and potentially avoid erroneous NOVs.  The fact that PDNs will be subject to regional and national-level review before issuance is a positive sign that the Directive will also improve consistency in enforcement actions across the agency’s regions.

We will continue to monitor and report on developments.

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Photo of Guy Brenner Guy Brenner

Guy Brenner is a partner in the Labor & Employment Law Department and leads the Firm’s Washington, D.C. Labor & Employment practice. He is head of the Government Contractor Compliance Group, co-head of the Counseling, Training & Pay Equity Group and a member…

Guy Brenner is a partner in the Labor & Employment Law Department and leads the Firm’s Washington, D.C. Labor & Employment practice. He is head of the Government Contractor Compliance Group, co-head of the Counseling, Training & Pay Equity Group and a member of the Restrictive Covenants, Trade Secrets & Unfair Competition Group. He has extensive experience representing employers in both single-plaintiff and class action matters, as well as in arbitration proceedings. He also regularly assists federal government contractors with the many special employment-related compliance challenges they face.

Guy represents employers in all aspects of employment and labor litigation and counseling, with an emphasis on non-compete and trade secrets issues, medical and disability leave matters, employee/independent contractor classification issues, and the investigation and litigation of whistleblower claims. He assists employers in negotiating and drafting executive agreements and employee mobility agreements, including non-competition, non-solicit and non-disclosure agreements, and also conducts and supervises internal investigations. He also regularly advises clients on pay equity matters, including privileged pay equity analyses.

Guy advises federal government contractors and subcontractors all aspects of Office of Federal Contract Compliance Programs (OFCCP) regulations and requirements, including preparing affirmative action plans, responding to desk audits, and managing on-site audits.

Guy is a former clerk to Judge Colleen Kollar-Kotelly of the US District Court of the District of Columbia.