Quick Hit: The Office of Federal Contractor Compliance Programs (“OFCCP”) issued Directive 2019-03 (the “Directive”), which announces two steps the agency will take to enhance compliance assistance for contractors. OFCCP will now make “certain Help Desk inquires and responses dynamically available and searchable as a self‐service option on OFCCP’s website.” OFCCP will also begin using Opinion Letters to provide guidance to the contracting community in response to fact-specific inquiries from contractors and their employees. The Directive envisions that these changes will provide a resource for contractors, thereby enhancing compliance.
Key Takeaway: Contractors have legitimately complained of the dearth of OFCCP guidance. This deficiency has hindered contractors in their efforts to comply with OFCCP regulations, and given OFCCP compliance officers too much leeway during compliance evaluations to dictate often shifting interpretations of what OFCCP regulations require. The publication of Help Desk questions and answers and the introduction of Opinion Letters should provide contractors guidance regarding their compliance obligations, and something upon which to rely in defending their practices during compliance evaluations or enforcement actions. As such, the Directive is a welcome development.
However, like all of the new initiatives announced by OFCCP in the past year, whether this Directive ends up living up to its promise depends on OFCCP’s execution. If the Directive results in clear, unambiguous guidance to contractors’ vexing questions, it will be a true positive development. If, however, the guidance provided through the Help Desk and Opinion Letter publications is vague, equivocal, or otherwise unclear, it will prove to be of no use to contractors – and could even make their compliance obligations even more challenging.
We will monitor the Help Desk and Opinion Letter publications and provide any noteworthy developments to our readers.
More Detail: On November 30, 2018, OFCCP introduced the Directive, which aims to further develop the OFCCP’s Help Desk and commence OFCCP’s use of Opinion Letters. The stated purpose of the Directive is to “provide additional compliance assistance and guidance regarding OFCCP’s laws and regulations in a manner that employees and employers can easily access and reasonably rely upon, as they seek to understand their rights and obligations under the law.”
OFCCP currently operates a Help Desk. According to the Directive, the Help Desk is a very popular resource, which has received 2,664 inquiries in the first three quarters of FY 2018. Apparently recognizing that many contractors and employees have the same questions, OFCCP seeks to enhance the utility of the Help Desk by making certain inquiries and their responses available online in a dynamically searchable database.
The OFCCP also plans to institute the use of Opinion Letters, a tool that has long been used by other divisions of the U.S. Department of Labor. Contractors can request “[f]act‐specific guidance about OFCCP’s jurisdictional coverage or application of guidance,” to which OFCCP may publicly issue a response in the form of an Opinion Letter. Additionally, if the OFCCP receives certain Help Desk questions that are deemed worthy of an Opinion Letter, it may decide to publish an Opinion Letter on that topic. Perhaps most importantly, “[a]s a matter of prosecutorial discretion, OFCCP also would consider whether a contractor acted consistently with an Opinion Letter, Directive, FAQ or Help Desk answer when determining whether to cite a violation for related actions.” Accordingly, Opinion Letters will have some teeth – but they will not be legally binding.
Although the Directive is effective as of November 30, 2018, OFCCP still has many action items to complete before the full benefits of the improved Help Desk and Opinion Letters will be realized, such as the establishment of a process for issuing Opinion Letters and development of a “dynamic and searchable publicly available source of Help Desk questions and answers while preserving the anonymity of requestors.” Nevertheless, this Directive appears to be a positive development which, when fully implemented, should provide contractors with helpful guidance as they work to comply with OFCCP regulations.