The Office of Federal Contract Compliance Programs (OFCCP) has issued a Final Rule that reverses many enforcement procedures that were established during the Trump Administration. This represents a noted departure in policy, pointing towards a shift back to the administrative conditions that characterized the OFCCP under the Obama administration. This is potentially a return to a more stringent enforcement regime that legal professionals working with federal contractors should be aware of.
While the Final Rule retains the agency’s use of the Predetermination Notice (PDN) and Notice of Violation (NOV) in situations where it alleges a contractor has engaged in discriminatory practices, it rescinds a range of definitions and criteria that were significant for contractors. This analysis by Constangy, Brooks, Smith & Prophete, LLP provides a more in-depth look at the changes made.
Under the new rule, procedural safeguards will be decreased. These had provided contractors with greater transparency and understanding of OFCCP’s enforcement practices. The removal resolute numerous definitions including, but not limited to, what constituted “statistical evidence,” “physical test,” and “reasonable accommodation.” These definitions were essential to contractors in understanding and complying with the law and guidelines.
Moreover, the changes also entail reducing the time limitations given to contractors to respond to OFCCP’s initial investigative findings before an NOV is issued. This amplifies the urgency for contractors to respond more swiftly, and, thus, the revised practices may necessitate increased preparation and readiness on the part of contractors and their legal teams.
Savvy legal professionals would do well to stay updated on these procedural changes, as they could have significant implications for the day-to-day operations, risk management strategies, and compliance practices of government contractors. As always, understanding the ever-evolving legal landscape helps attorneys to provide the best possible counsel to their clients.