OFCCP Directives Provide Options for Employers
We previously reported that OFCCP released three new directives on Friday, April 17. These directives are:
- Directive 2020-02 regarding improved efficiency in compliance evaluations
- Directive 2020-03 regarding a new mediation program to be used during compliance evaluations
- Directive 2020-04 regarding the agency’s Ombudsman program
Our previous post discussed Directive 2020-02 in some detail. This post will focus on the other new directives released on April 17.
OFCCP Mediation Program
Directive 2020-03, titled Pre-Referral Mediation Program, provides a mechanism for employers undergoing an OFCCP compliance review to engage in mediation with the agency. The agency will offer mediation after it has issued a show cause notice (SCN). OFCCP typically uses an SCN when the agency identifies a significant violation of its regulations and the agency is unable to enter into a conciliation agreement to resolve the violation. A “significant violation” might include the following items:
- The failure to submit affirmative action plans at the start of a compliance review
- An employer’s refusal to allow OFCCP access to the employer’s site or records
- An unresolved finding of discrimination
The mediation program offered in Directive 2020-03 is meant to be used when there is an unresolved finding of discrimination. OFCCP intends to offer mediation rather than move directly to possible sanctions. Use of these sanctions would require the involvement of the Department of Labor’s Office of the Solicitor.
Directive 2020-03 provides a formal process for selecting and using a mediator. The mediator has no authority to act as a final arbiter between OFCCP and the employer, and OFCCP has the right to bypass mediation in certain circumstances. The use of the mediator is meant to “assist the parties in weighing their options and finding mutually satisfactory outcomes.”
The offer to use mediation is part of OFCCP’s commitment to efficiency. Like OFCCP Directive 2019-02 on early resolution procedures, Directive 2020-03 would be used to more effectively move a compliance review towards completion.
OFCCP Adds to Ombuds Program
Directive 2020-04, titled Ombuds Service Supplement, supplements an earlier OFCCP directive that created the agency’s Ombuds program. OFCCP intends to use the Ombuds program to help resolve concerns raised by federal contractors and subcontractors. Employers and other interested parties are also allowed to raise concerns with the Ombuds service.
OFCCP has developed an Ombuds Service Protocol that is referenced in Directive 2020-04. This protocol document “outline[s] the fundamental tenets of the Ombuds Service…” The protocol document makes it clear that the role of the Ombuds Service is to provide “neutral facilitation services.”
The current Ombudsman’s contact information is as follows:
U.S. Department of Labor
Office of Federal Contract Compliance Programs
200 Constitution Ave NW
Main Line: 202-693-0101
Direct Line: 202-693-1174
Neutral Parties Available to Employers
Both Directive 2020-03 and Directive 2020-04 provide opportunities for federal contractors and subcontractors to engage a neutral third party in concerns they may have. Directive 2020-03 gives employers who are involved in difficult OFCCP compliance reviews the ability to request mediation in front of an individual who is not tied to OFCCP. Directive 2020-04 gives employers and others who have had problems with OFCCP a place to refer concerns outside of or during compliance reviews.