OFCCP Issues Directive Requiring Use of Predetermination Notices to Encourage More Transparency

This blog post was contributed by Lynn Clements, director of regulatory affairs, Berkshire Associates Inc.  

The Office of Federal Contract Compliance Programs (OFCCP) recently announced it would be standardizing its predetermination notices (PDNs) under Directive 2018-01. This is the first directive issued by new OFCCP Director Ondray T. Harris.

The PDN is a letter the agency uses to inform federal contractors of the agency’s preliminary findings of employment discrimination. Prior to this directive, federal contractors complained that OFCCP regional offices had too much discretion over when a PDN might be used, creating inconsistency among regions and leaving some contractors without sufficient notice about the details of the agency’s findings before a formal Notice of Violation was issued. The new directive is an effort to increase transparency of preliminary findings and ensure consistency across regional and district offices.

Under Directive 2018-01, all OFCCP regions are required to issue a PDN in every compliance review in which discrimination is alleged and the contractor has not provided adequate explanations for any proposed discrimination findings. The directive explicitly states that “regional discretion is no longer permitted” and that a PDN must be issued in any case with proposed discrimination findings, either individual or systemic. The new process also requires all PDNs to be reviewed by the appropriate regional solicitor’s office and the OFCCP national office for a final decision before issuance. Contractors also must be given 15 additional calendar days to rebut OFCCP’s proposed findings once the PDN is issued.

The overall goal of the new directive is to institute a uniform approach to the use of PDNs in such evaluations where the agency believes discrimination may be present. While no federal contractor wants to find itself facing discrimination allegations during an OFCCP compliance review, the new directive should be welcome news for contractors who have argued for more consistency and transparency in OFCCP compliance evaluations. The directive is intended to be interim guidance until the agency revises the Federal Contractor Compliance Manual to reflect this change.