Directive (DIR) 2021-02
U.S. DEPARTMENT OF LABOR
Office of Federal Contract Compliance Programs
A Directive (DIR) is intended to provide guidance to OFCCP staff and/or federal contractors on enforcement and compliance policy or procedures. A DIR does not change the laws and/or regulations governing OFCCP’s programs and does not establish any legally enforceable rights or obligations. The contents of this document do not have the force and effect of law and are not meant to bind the public in any way. This document is intended only to provide clarity to the public regarding existing requirements under the law or agency policies.
Effective Date: December 11, 2020
- SUBJECT: Certainty in OFCCP Policies and Practices
- PURPOSE: To reaffirm OFCCP's commitment to a number of certainty initiatives and principles, and establish a process to facilitate the continued provision of clarity and certainty in OFCCP policies and practices.
- REFERENCES: This DIR references the guidance listed below:
- Executive Order 11246, as amended.
- Section 503 of the Rehabilitation Act of 1973, as amended (Section 503).
- Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended (VEVRAA).
- 41 Code of Federal Regulations (CFR) Chapter 60, Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor.
- DIR 2018-06, Contractor Recognition Program (Aug. 24, 2018).
- DIR 2018-08, Transparency in OFCCP Compliance Activities (Sept. 19, 2018).
- DIR 2020-02, Efficiency in Compliance Evaluations (Apr. 17, 2020).
- What Federal Contractors Can Expect (referred to as the "Contractors Bill of Rights"). www.dol.gov/sites/dolgov/files/ofccp/CAGuides/files/WhatFederalContractorsCanExpect-CONTR508c.pdf
- PDN Rule, 41 CFR Chapter 60, Office of Federal Contract Compliance Programs, Department of Labor. www.federalregister.gov/documents/2020/11/10/2020-24858/rin-1250-aa10
- Contractor Assistance Portal - Contractor Assistance Portal Website
- FCCM Update - https://www.dol.gov/agencies/ofccp/manual/fccm
- Opinion Letter Program - https://www.dol.gov/agencies/ofccp/opinion-letters
- 29 CFR § 89.7, Guidance Documents, Petitions for withdrawal or modification
- AFFECTED POLICY: None.
- BACKGROUND:In 2018, OFCCP adopted the four principles of Certainty, Efficiency, Recognition, and Transparency (the CERT principles) as a matter of good governance and better service to the public. The CERT principles commit OFCCP to certainty in the policies and practices it enforces, efficiency in the conduct of its compliance evaluations, recognition of top-performing stakeholders and best practices, and transparency in information sharing and engagement with the stakeholder community.
On August 24, 2018, OFCCP issued DIR 2018-06, Contractor Recognition Program. This Recognition Directive seeks to identify contractors with high-quality and high-performing compliance programs and initiatives. These programs should have a record of accomplishment related to nondiscrimination and provide applicants and employees with equal employment opportunity under the laws enforced by OFCCP. The Excellence in Disability Inclusion Award is one of the programs encompassed by this approach.
On September 19, 2018, OFCCP issued DIR 2018-08, Transparency in OFCCP Compliance Activities. This Transparency Directive ensures transparency in all stages of OFCCP compliance activities from the publishing of the scheduling methodology to the resolution of the matter. In addition, DIR 2018-08 educates contractors by informing them what to expect during a compliance evaluation and protects workers from discrimination by articulating the consistent enforcement of OFCCP legal authorities.
On April 17, 2020, OFCCP issued DIR 2020-02, Efficiency in Compliance Evaluations. This Efficiency Directive announces operational initiatives and a review process to ensure efficiency at all stages of a compliance evaluation, leading to a reduction in aged cases and allowing the agency to conduct more overall reviews, positively impacting more workers.
The final Directive of the four CERT Principles is this Certainty Directive. The agency began its focus on certainty with the very well-received guidance document What Federal Contractors Can Expect, where the agency provided the following eight commitments:
- Access to Accurate Compliance Assistance Materials
- Timely Responses to Compliance Assistance Questions
- Opportunities to Provide Meaningful Feedback and Collaborate
- Professional Conduct by OFCCP's Compliance Staff
- Neutral Scheduling of Compliance Evaluations
- Reasonable Opportunity to Discuss Compliance Evaluation Concerns
- Timely and Efficient Progress of Compliance Evaluations
These eight commitments are being reaffirmed in this Directive through the incorporation and attachment of What Federal Contractors Can Expect.
The agency continued with its focus on certainty through the establishment of the Contractor Assistance Portal and Opinion Letter Program, the founding of its Contractor Compliance Institute, the publication of Technical Assistance Guides, and the issuance of a comprehensive update to the Federal Contract Compliance Manual.
The agency recently demonstrated its continuing commitment to certainty through its promulgation of Nondiscrimination Obligations of Federal Contractors and Subcontractors: Procedures to Resolve Potential Employment Discrimination, a final rulemaking which provides clarity and certainty regarding OFCCP's procedures and evidentiary standards for its enforcement of nondiscrimination obligations.
Finally, the agency is now adding a commitment to conduct ongoing reviews of its policies and practices to ensure they are clear and certain to the stakeholder community, and to provide for a process by which a member of the stakeholder community can seek clarification or disclosure of a policy or practice to ensure greater certainty.
- ROLES AND RESPONSIBILITIES:
OFCCP's Policy Director and Director of Enforcement are primarily responsible for implementation of this Directive within their respective areas. They will review agency policies and enforcement practices on a recurrent basis to ensure clarity and remove ambiguity where possible. They will provide periodic reports to the OFCCP Director and Deputy Directors, and will notify these senior executives of any requests received through the process established by this Directive.
- POLICY AND PROCEDURES:
OFCCP incorporates by reference all of the commitments made by the agency in What Federal Contractors Can Expect, which is also included as an attachment to this Directive for ease of reference.
OFCCP also commits to the ongoing review on at least an annual basis of all of its policies and practices by the Division of Policy and Program Development and the Division of Enforcement to ensure clarity and remove ambiguity where possible.
If a stakeholder believes there is an area where OFCCP's pre-enforcement referral policies or practices are unclear or undisclosed, the stakeholder may request clarification or disclosure of the policy or practice from the agency. The process for making these clarification and disclosure requests is distinct and apart from the formal process outlined in the Department of Labor's regulations for requesting the withdrawal or modification of guidance documents (see 29 CFR § 89.7).
The purpose of OFCCP's "certainty" process is to facilitate inquiries to the agency where additional certainty in an area would facilitate compliance and thereby enhance equal employment opportunity. If the request involves agency policies or compliance assistance materials, such request should be to the Policy Director. Likewise, if the request involves pre-referral enforcement practices, such request should be to the Enforcement Director.
The OFCCP Director and Deputy Directors will be made aware of requests received by the Policy or Enforcement Director and will provide input where warranted. The agency will respond promptly to each request within a reasonable time, although the agency retains full discretion as to how it responds.
- INTERPRETATION: This Directive does not create new legal rights or requirements or change current legal rights or requirements for contractors or OFCCP. Executive Order 11246, Section 503, VEVRAA, OFCCP's regulations at 41 CFR Chapter 60, and applicable case law are the official sources for contractors' compliance responsibilities. Nothing in this Directive is intended to change otherwise applicable laws, regulations, or other guidance or to restrict or limit OFCCP's ability to perform compliance evaluations, request data, or pursue enforcement of any issue within its jurisdiction. This Directive is not intended to have any effect on pending litigation, nor will it alter the agency's basis for litigating any pending cases.
- ATTACHMENTS: What Federal Contractors Can Expect.
CRAIG E. LEEN
Office of Federal Contract Compliance Programs