The U.S. Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) issued its second Directive of 2022 (DIR 2022-02) to expedite compliance reviews and to increase contractors' burdens to produce documents earlier in the compliance review process. This Directive will put more pressure on contractors under compliance review to assemble and produce records quickly.
Now more than ever before, contractors would be well advised to keep their affirmative action programs up to date in case the contractor later becomes the target of a compliance review.
OFCCP Will No Longer Delay Scheduling Contractors for 45 Days After Publishing the CSAL
Prior to Directive 2022-02, OFCCP would publish the Corporate Scheduling Announcement List (CSAL) to notify contractors that they are included in OFCCP's scheduling list. Then, pursuant to Directive 2018-08, OFCCP would automatically delay scheduling with contractors for a period of 45 days. The new Directive provides "OFCCP may begin scheduling contractors upon the publication of the CSAL."
OFCCP's most recent Directive removes that automatic 45-day delay because the prior policy ran "counter to OFCCP's goal of conducting comprehensive compliance evaluations that foster consistent accountability and timely submission of required information." In other words, OFCCP expects contractors to comply with its regulations at the time it publishes the CSAL. And, it appears that OFCCP's goal may be to eliminate the scenario where contractors begin their compliance efforts in the 45-day window after the publication of the CSAL.
Upon Receipt of a Scheduling Letter, a Covered Contractor Has 30 Days to Produce Documents and Data
Under the new Directive, a covered contractor must produce all affirmative action programs and itemized listing data within 30 days of receiving a scheduling letter from OFCCP. In the past, OFCCP compliance officers had some degree of latitude to grant extensions to that 30-day deadline. However, the most recent Directive clarifies that OFCCP may grant an extension only "for extraordinary circumstances."
Those circumstances include but are not limited to:
- 1. Extended medical absences of key personnel;
- 2. Death in the immediate family of key personnel;
- 3. Localized or company-specific disaster affecting records retrieval such as a flood, fire, or computer virus;
- 4. Unexpected military service absence of key personnel; and
- 5. Unexpected turnover or departure of key affirmative action official.
OFCCP May Request a Broader Range of Supplemental Information and Data
The Directive warns contractors that if a contractor's submission is incomplete or if OFCCP identifies issues that warrant further analysis, it may likely request supplemental information and data. Where OFCCP identifies potential indicators of discrimination in employment practices, it may request supporting documentation to cover a period beginning two years before the date the contractor received the scheduling letter.
In addition, OFCCP may also request to examine employee records, such as employment activity data and/or compensation data created after the date of the scheduling letter. OFCCP's purpose in requesting that post-scheduling letter information is to determine whether the employer's (alleged) non-compliant practices have ended (meaning OFCCP may not take any enforcement action) or whether the practice has continued (in which case OFCCP may take enforcement action).
OFCCP May Request Significant Employee Information
To facilitate thorough investigations, OFCCP may request significant employee information, including personal contact information, personnel files, and applications that will enable OFCCP to contact employees, former employees, applicants, or other witnesses. During its investigation, OFCCP may request that contractors provide the agency with unredacted contact information, such as telephone numbers, mailing addresses, email addresses, and even social security numbers.
The Directive leaves unchanged OFCCP's policy with respect to an employee's representation by an attorney during an interview with OFCCP. When OFCCP conducts interviews with upper-level managers and directors in their management capacity that speak for or make decisions on behalf of the company, the contractor may have an attorney or another representative present. However, when OFCCP is interviewing nonmanagement personnel, the contractor does not have the right to have a representative present.
Covered Contractors Should Be Proactive in Updating and Maintaining Their Affirmative Action Programs
Since the new Directive provides contractors with less notice in advance of an audit, and since the Directive expedites and expands contractors' burden to produce documents, covered contractors are well advised to prepare their annual affirmative action programs on a regular and timely basis.
In the past, contractors appearing on the CSAL may have had time to belatedly prepare compliant affirmative action program documents. But under the new regime and accelerated timetables, unprepared and underprepared contractors may find it very difficult to demonstrate compliance in an OFCCP audit.