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The Office of Federal Contract Compliance Programs Announces Final Rule on Procedures for Identifying and Remedying Discrimination in Federal Contracting

16 Aug

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Update Applicable to:

All federal contractors

What happened?

The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has announced a final rule called “Pre-enforcement Notice and Conciliation Procedures.” The final rule will take effect on September 5, 2023.

What are the details?

This rule modifies the agency’s previous rule, “Nondiscrimination Obligations of Federal Contractors and Subcontractors: Procedures to Resolve Potential Employment Discrimination,” which became effective on December 10, 2020.

Issues with the 2020 Rule

The 2020 rule imposed rigid evidentiary requirements early in the compliance evaluation process, attempting to codify complex definitions for “qualitative” and “quantitative” evidence and other standards. These standards and definitions hindered OFCCP’s ability to pursue cases with merit and diverted agency and contractor resources from addressing discrimination effectively.

Strengthening OFCCP Enforcement

The new final rule rescinds the evidentiary standards and definitions from the 2020 rule, providing OFCCP with greater flexibility in pre-enforcement and conciliation procedures. This promotes efficiency in resolving cases, strengthens enforcement efforts, and aligns with Title VII of the Civil Rights Act of 1964.

Retention of Notices

Retaining Purposeful Notices: The final rule retains the two notices codified in the 2020 rule, the Predetermination Notice, and the Notice of Violation, and restores the distinct purposes of each. These notices enable the agency to explain its findings related to discrimination at different evaluation stages, while offering contractors an opportunity to respond.

Conclusion

The U.S. Department of Labor’s new final rule enhances the effectiveness of OFCCP enforcement by removing rigid evidentiary requirements and providing greater flexibility in pre-enforcement and conciliation procedures. By promoting efficiency and consistency with Title VII, this rule seeks to strengthen efforts to combat employment discrimination among federal contractors and subcontractors.

For more information, please see the links below:

DOL News Release

DOL Blog

Final Rule

What do employers need to do?

Federal contractors should review the Final Rule and DOL information above and consult their trusted attorney for any further guidance.

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This communication is intended solely for the purpose of conveying information. The present post might incorporate hyperlinks directing readers to websites managed by third-party entities. The inclusion of any links within this communication is meant to serve as points of reference and could encompass opinion articles from various law firms, articles from HR associations, official websites, news releases, and documents of government agencies, and other relevant third-party sources. Vensure has no authority over these external websites and bears no responsibility for their content. Furthermore, Vensure does not endorse the materials present on these websites. The contents of this communication should not be interpreted as legal advice or as a legal standpoint concerning specific facts or scenarios. Nor should it be deemed an exhaustive compilation of facts potentially pertinent to federal, state, or local laws. It is strongly advised that employers solicit legal guidance from an employment attorney when undertaking actions in response to any legal updates provided. This is due to the possibility of future alterations occurring in federal, state, and local laws, regulations, as well as the directives and guidelines issued by governing agencies. These changes may transpire at any given time, potentially rendering certain portions of the content within this update void or inaccurate.

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