DE Talk Unplugged | OFCCP in 2022

Labor law was a roller coaster for employers last year and 2022 is looking to be much the same with big goals and new changes planned from the Office of Federal Contract Compliance Programs (OFCCP). In our first DE Talk episode of the year, our employment law experts John C. Fox and Candee Chambers sat down to discuss the changes we saw last year as we transitioned to a new administration, faced unprecedented mandates, and what we can expect from the regulatory agency in the coming months. Take a look at this short snippet of the conversation for a taste of this insightful conversation!

John C. Fox:

You’ll see in looking at the proposed regulatory agenda that it shines light on the major regulatory policies the Biden administration wants to pursue at OFCCP in the next 12 months. Let me start with the nearest policy initiative coming up first and then work to those policy initiatives that OFCCP hopes to complete by the end of the fiscal year 2022, which ends on September 30, 2022. October 1 will begin the new fiscal year 2023 this coming September 30, 2022. We wrote about this on our Week in Review published Friday, December 13, 2021, and cataloged all five of these initiatives that I’ll just briefly mention, but you’ll see the political issue bleed through here.

Candee Chambers:
Right. I know what you’re going to say, but go ahead. I might throw one in myself.

John C. Fox:
Okay. All right. First, they’re going to start very soon, they say in the next month, with technical amendments to OFCCP rules, which are long overdue. These are just cleanups to spell the names of the statutes correctly, get the jurisdictional thresholds updated, correct the OMB control numbers that have been assigned to allow each of these various pieces of regulations to come to be over the years. They want to fix all the pronouns as well, but I’ll call that a technical cleanup. They’re promising that by February of this year. OFCCP is running late. It’ll probably be spring.

Candee Chambers:
Yeah, and that doesn’t really seem to me to be that important.

John C. Fox:
No.

Candee Chambers:
We’ve lived with it like this for quite a while. The one that I think is really important and a little disconcerting I think for the contractor community is their proposed modifications to their PDN rule, the predetermination rule. I think that’s going to be interesting. I think all of the government contractor community was concerned about the transparency initiative that Craig Leen had put together, and is that going to continue? With the PDN rule, it requires OFCCP to tell the contractor what the alleged violation is and give them 15 days to respond and say, “No, that’s not right. You didn’t perceive it correctly. This is what’s really going on.” They can ask for an extension, it’s easily extended, because there’s a lot of information.

The one concern I think is that they don’t issue the PDN until it’s been to the national office and the national office has signed off on it. It’s one of those things you get it, and I’ve told all of our Members don’t ever try to respond to a PDN on your own. You’ve got to get legal counsel involved because the likelihood of winning, and I don’t know, John, if you’ve had situations, but the likelihood of winning is lessened because the national office already has their eyes on it. I think that’s one that the contractor community is a little nervous about what might happen with that.

John C. Fox:
Yes. The concern is that OFCCP is going to follow the path of the EEOC of reducing transparency.

Candee Chambers:
Exactly.

John C. Fox:
The PDN rule requires OFCCP to write down their allegations that they believe they have evidence to prove against the contractor and then present that to the contractor, let the contractor respond to it point by point, see the evidence, duplicate, replicate what the economic studies on the other side are if it’s a compensation case or failure to hire case, a lot of statistics involved typically. They want to be able to replicate that.

Candee Chambers:
Right, and the OFCCP has to give them that type of information to say, “This is what we did, this is why we say that this is an alleged violation,” right?

John C. Fox:
OFCCP is clearly going to pull back on all of that, but they want to play hide and seek with what they know and make you think that they know more than they really do and contractors are going to be very unhappy about this and OFCCP is just going to steamroll them, I fearlessly predict. The third thing is…

To uncover OFCCP’s other three initiatives for 2022, tune in to the entire episode of the DE Talk podcast. If you are a federal contractor, this is a conversation you don’t want to miss! As always, stay tuned for another great episode in the coming weeks!