OFCCP Directive Aims for Greater Transparency with Federal Contractors

The Office of Federal Contract Compliance Programs (OFCCP) has issued its first policy directive of 2018, standardizing the use of Predetermination Notices (PDN) in an effort to increase transparency and communication about preliminary findings of discrimination in compliance evaluations of federal contractors.

Under Directive 2018-01, OFCCP is instituting a uniform protocol for staff to use PDNs in both individual and systemic discrimination cases in which the agency believes discrimination findings may exist. A PDN is a letter that is used by the agency to inform federal contractors and subcontractors of preliminary findings of employment discrimination from compliance evaluations before deciding whether the agency should issue discrimination violations.

Before the directive, OFCCP provided regional and district offices discretion in whether to issue the PDN prior to issuing a Notice of Violation (NOV). Under the new directive, the use of regional discretion is no longer permitted.

Based on the new policy, OFCCP compliance officers and other responsible staff must issue PDNs at the conclusion of compliance evaluations in which preliminary individual and systemic discrimination findings have been reached, and where the contractors have not provided adequate explanations to address the proposed discrimination findings. The PDN provides contractors 15 additional calendar days to rebut OFCCP’s proposed findings that sufficient evidence exists of discrimination prior to OFCCP deciding to issue an NOV.

As of the issuance of this directive, OFCCP said any NOV not yet issued must be held and a PDN issued in its place to allow contractors an opportunity to respond to the agency’s preliminary findings. The appropriate regional Office of the Solicitor must review PDNs before they can be submitted to OFCCP’s national office for a review and final decision.

This directive is intended as interim guidance until OFCCP revises the Federal Contract Compliance Manual (FCCM) to reflect this change.

To view Directive 2018-01, click here.

The OFFCP encouraged federal contractors with questions to contact the OFCCP Help Desk at 1-800-397-6251 (TTY: 1-877-889-5627) or online.

This new directive on the use of PDNs provides federal contractors with an opportunity to set the record straight with OFCCP before any discrimination violations are issued. It’s important that contractors react with urgency if they receive a PDN. Federal contractors should consult with appropriate members of management, HR and legal counsel as quickly as possible to prepare an appropriate response within the 15-day window provided.

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