Hunton Employment & Labor Perspectives

On July 26, 2024, the Office of Federal Contract Compliance Programs (“OFCCP”) released directive 2024-01 , which outlines updated procedures for expedited pre-enforcement conciliation. The directive provides guidance consistent with the OFCCP’s final rule titled Pre-Enforcement Notice and Conciliation Procedures which went into effect in September of 2023 (You can read our previous article regarding this final rule here).

Through the expedited conciliation process, OFCCP can waive pre-enforcement notice procedures in favor of an expedited process. The details of the expedited process vary for investigations into discrimination and technical violations. This directive rescinds and replaces previous abbreviated procedures outlined in DIR 2019-02 “Early Resolution Procedures.”

Many of the changes from the “Early Resolution Procedures” to the new “Expedited Conciliation Procedures” are superficial like the name change. For example, the acronym “ERCA” previously stood for “Early Resolution Conciliation Agreement with Corporate-Wide Corrective Action” but now stands for “Expedited Resolution Conciliation Agreement.” Further “Compliance Officers” are now labeled “Investigators,” a development from earlier in the year when OFCCP stated that the new title is better aligned with the skillset and objectives of the role.

The new directive does, however, include certain substantive changes to the program.  These changes include reducing the “no audit period,” during which OFCCP will not schedule an additional compliance evaluation following an ERCA, from five years to three years. The new directive also expands the realm of violations where contractors can elect to pursue expedited procedures by removing the requirement that a violation must be “material” to elect expedited procedures. Interestingly, the new directive, as written, does not mention the agency-adopted practice of a two-year moratorium on being audited once a contractor has executed a conciliation (and post-monitoring requirements if any). However, Acting Director Michelle Hodge clarified at the recent National Industry Liaison Group Conference that contractors can still expect a two-year moratorium on audits at a particular location(s) covered by any agreement after the mandatory three-year monitoring period described in the directive.

The directive frames the expedited procedures as mutually beneficial to both contractors and the OFCCP because they “help contractors and the OFCCP achieve their mutual goal of equal employment opportunity in federal contracting and reduce the length of compliance evaluation to efficient resolutions” and allows contractors with “multiple establishments to develop enterprise-wide compliance.” Expedited conciliation procedures may provide a benefit to contractors by providing a shorter timeline; the directive notes that conciliation of an ERCA should last no more than 60 calendar days from the initial meeting. Still, contractors should evaluate whether the expedited conciliation procedures should be agreed to on a case by case basis, rather than simply consenting for brevity’s sake.