By Joanna Colosimo, Bill Osterndorf
On March 31, 2022, OFCCP released their second directive under the Biden administration, Directive 2022-02. This Directive explicitly rescinds and replaces DIR 2018-06 (Contractor Recognition), DIR 2018-08 (Transparency), DIR 2020-02 (Efficiency in Compliance Evaluations), and DIR 2021-02 (Certainty in OFCCP Policies and Practices).
Any conflicting procedures or policies from the previous directives listed are superseded. The directives that have been rescinded are no longer available on OFCCP’s website.
Directive 2022-02's intended purpose is to:
[Clarify] OFCCP’s policies regarding scheduling of contractors for compliance evaluations, including enhancing the agency’s neutral scheduling procedures to reach a broader universe of federal contractors and eliminating delays in scheduling. It also describes contractors’ obligations to provide timely submission of complete Affirmative Action Programs (AAPs) and support data, supplemental information, and access to employees, applicants, and other witnesses.
To accomplish these objectives, Directive 2022-02 states that:
- For efficiency, OFCCP will no longer delay scheduling contractors for 45 days after the issuance of a Corporate Scheduling Announcement List (CSAL). As of the effective date of Directive 2022-02, OFCCP may begin scheduling contractors upon the publication of a CSAL.
- A coordinated and cross-regional approach to conducting multi-establishment compliance reviews will be implemented. In cases where an employer has multiple establishments scheduled for review, OFCCP will coordinate evaluations of common policies and patterns across establishments.
- Contractors must provide access to premises and records relevant to OFCCP’s investigation in a timely manner. During investigations, OFCCP will request contractors provide employee contact information such as telephone numbers, email addresses, mailing addresses, and social security numbers.
Directive 2022-02 also discusses supplemental requests for information during a compliance review. The agency reiterates that it has the right to request data, AAPs, and other materials for a two-year period prior to the receipt of a scheduling letter. The agency also states that it has the right to request employment-related information created after the date of the scheduling letter to ensure that potential violations the agency has identified have ended.
The recission of Directives designed around transparency, efficiency, certainty and recognition, which are pillars of the Craig Leen OFCCP administration, is a loss for the contractor community. The rescinded directives created more openness on the part of OFCCP and recognized the challenges employers face in meeting both regulatory requirements and other business objectives.
DCI will monitor the implementation of this directive, in conjunction with OFCCP’s Fiscal Year 2023 Budget Justification, the opening of certification on the Contractor Portal, and the pending recission of OFCCP’s regulations regarding pre-determination notices. We will have further details when available.
