On Friday, April 17, OFCCP released three new directives, including one directive that has timelines for closing compliance reviews. The new directives are as follows:

• 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

Each of these directives is part of the agency’s commitment to its CERT initiative. (CERT stands for certainty, efficiency, recognition, and transparency.) All three of these new initiatives have the potential to impact federal contractors and subcontractors.

OFCCP Commits to Timelines

Directive 2020-02, titled Efficiency in Compliance Evaluations, provides timelines and procedures for moving compliance reviews forward. The directive is part of the agency’s ongoing efforts to close reviews that have been open for years. It also reflects the agency’s desire to do a greater number of compliance reviews than in recent years.

The new directive includes the following elements:

• Compliance Officers are instructed to contact organizations under review at least once every 30 days
• OFCCP senior managers are alerted when compliance reviews are open for 12 months if a Predetermination Notice (PDN) has not been issued
• Organizations may ask OFCCP to provide reasons a compliance review remains open for 12 months with no PDN issued
• Organizations may ask OFCCP to provide reasons a compliance review remains open for 24 months and has not been referred for formal legal action

The background for the new directive also includes the following statement:

OFCCP has…established an operational goal of completing [compliance] evaluations within 180 days absent preliminary findings of discrimination….This goal assumes the contractor fully cooperates with the compliance review, including timely submission of all documents and records and providing prompt access to all interviewees and premises requested by OFCCP.

Time to Close Compliance Reviews Has Been Dropping

The background for the new directive discusses OFCCP’s efforts to resolve long-standing compliance reviews. The agency notes that average time to complete a compliance review has dropped from 516 days to 399 days. In the last two years, the average time for completion of the initial phase of a compliance review, the desk audit, has dropped from 142 days to 68 days when no significant issues were discovered. During the last three months of 2019, the average time for completion of the desk audit was 35 days.

Directives do not have the force of law, so Directive 2020-02 should be seen as a statement of OFCCP’s commitment to efficiency.  OFCCP has formal regulations that must be followed by the agency and by organizations subject to these regulations. Directives simply provide guidance and may be withdrawn by the agency at any time.

Stay tuned to our blog for additional information and analysis regarding Directives 2020-03 and 2020-04.