A Wolf In Sheep’s Clothing? OFCCP’s New Directive on Expedited Conciliation Procedures

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On July 26, 2024, the Office of Federal Contract Compliance Programs (OFCCP) published Directive (DIR) 2024-01, containing a mechanism for conciliating issues found by OFCCP during compliance evaluations through expedited conciliation.


Quick Hits

  • OFCCP published directive providing new procedures for “expedited” conciliation
    during compliance evaluations.
  • OFCCP anticipates that negotiations under these procedures will last no longer than
    sixty days.
  • Such expedited conciliation agreements require reporting to OFCCP and may allow
    the agency to scrutinize and possibly renew investigation of future contractor data
    and processes.  

The new procedures allow contractors facing a compliance review to waive formal
 pre-enforcement notice procedures in favor of an “expedited” conciliation process, details
of which depend on whether OFCCP’s investigation seeks remedies for discrimination or
“technical” violations.  Any Early Resolution Conciliation Agreement (ERCA) arising from
these expedited procedures will contain a three-year monitoring and reporting period—
which is a longer time frame than that seen in most current conciliation agreements—and
the ERCA will exempt the contractor from future compliance evaluations for three years
from the date of the ERCA, which is not a change to current practice in three-year
conciliation agreements that  are not “expedited.” OFCCP anticipates that all
ERCA negotiations under these expedited procedures will last no longer than sixty days;
if the parties cannot agree to terms  or if the “contractor” fails to
negotiate in good faith, OFCCP will discontinue ERCA negotiations.

We anticipate that OFCCP district offices will be eager for contractors to avail themselves
of these expedited procedures and will more quickly identify alleged violations that can be
“efficiently” resolved through an ERCA. Contractors may want to pay careful attention to
ensure that appropriate defenses are raised to alleged violations—especially those related to
alleged discrimination—prior to agreeing to a quick resolution through a three-year conciliation
agreement Such agreements require reporting to OFCCP, through which OFCCP can
scrutinize and possibly renew investigation of future contractor data and processes.  

Source(s): Ogletree Deakins, received on July 31, 2024;
OFCCP DIRECTIVE (DIR) 2024-01, accessed on July 31, 2024.