OFCCP Director Ondray Harris? first public act as Director is to require a national, uniform practice at an agency not known for its uniformity. In Directive 2018-01, Harris directed the Regional and District Directors to issue Pre-Determination Notices (PDN) in every compliance evaluation where the agency believes either individual or systemic discrimination findings may exist. Contractors will then have 15 calendar days to rebut the OFCCP?s proposed findings. Further, every PDN must be reviewed by the appropriate Solicitor?s office before being forwarded to the National Office for final review. The new directive takes effect immediately, and any Notice of Violation (NOV) not yet issued must be withheld until a PDN is first issued ?to allow contractors an opportunity to respond to the agency?s preliminary findings.?
In the past, PDN?s were reserved for matters of systemic discrimination, and the decision to issue a PDN was left to the discretion of the OFCCP District and Region. This led to varying practices across the country. Further, where PDNs were not issued, the NOV often curtailed conciliation efforts, and moved the compliance evaluation into a more adversarial posture. Harris? aim, as stated in the Directive, is ?to achieve consistency across regional and district offices, increase transparency about preliminary findings with contractors, and encourage communication throughout the compliance evaluation process.?
Although a great many compliance evaluations are closed without any findings of violations, this Directive is, nonetheless, a significant first step. Multi-jurisdictional contractors have been seeking greater consistency among the Districts and Regions of the OFCCP for years. For many of those contractors, working with different Regions of the OFCCP has seemed as if they were dealing with entirely different agencies of the federal government. As a result, any efforts by OFCCP to bring greater consistency are important. Further, the promise of an earlier notification of the agency?s findings, and an assurance that contractors will have an early opportunity to respond, holds out the hope that more meaningful communications will take place in a less contested context than that created by a NOV. Most significantly, the fact that PDNs will be reviewed by the National Office will likely have the effect of tempering the positions of the more aggressive Districts and Regions; all of which may lead to more amicable resolutions of compliance evaluations.
The hope among the contractor community is that this first step is followed by others regarding other facets of the audit process, bringing still more consistency and transparency to a process that has been going in the opposite direction.