March 21, 2022

In tomorrow’s Federal Register, the U.S. Department of Labor’s (DOL) Office of Federal Contract Compliance Programs (OFCCP) will publish a proposed rule to modify a Trump-era regulation entitled, “Nondiscrimination Obligations of Federal Contractors and Subcontractors: Procedures to Resolve Potential Employment Discrimination,” which has been in effect since December 10, 2020 (2020 Rule).

The 2020 Rule codified two formal notices, the Predetermination Notice and the Notice of Violation, that OFCCP provides to federal contractors when it finds potential violations of laws enforced by OFCCP. These notices explain the concerns the agency has identified regarding noncompliance to federal contractors and gives the contractor an opportunity to respond. According to OFCCP, the 2020 rule heightened the evidentiary requirements the Agency had to meet early in the compliance evaluation process and required the OFCCP to differentiate between “qualitative” and “quantitative” evidence.

The OFCCP proposed rule publishing tomorrow would, among other things: (1) rescind the higher evidentiary standard, and allow OFCCP to resume the practice of issuing a Predetermination Notice merely describing the preliminary indicators of discrimination and other potential violations; and (2) reduce the Predetermination Notice response period to the 15-calendar day period in effect prior to the 2020 rule.

Comments on the proposed rule are due April 21, 2022 and can be submitted here using RIN Number 1250-AA14.

© 2024 Signatory Wall and Ceiling Contractors Alliance (SWACCA). All rights reserved.