Directive (DIR) 2024-01

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 to provide clarity to the public regarding existing requirements under the law or agency policies.

Effective Date: July 26, 2024

1. SUBJECT: Expedited Conciliation Procedures
    
2. PURPOSE: To promote efficient compliance evaluations with an expedited conciliation process.
    
3. REFERENCES: This directive references the following:
   1. DIR 2019-02, Early Resolution Procedures (Nov. 2018);
   2. Executive Order 11246, as amended;
   3. Section 503 of the Rehabilitation Act of 1973, as amended (Section 503);
   4. Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended (VEVRAA);
   5. 41 CFR Chapter 60-1.33(e); 41 CFR Chapter 60-300.62(e); 41 CFR Chapter 60-741.62(f); and
   6. Federal Contract Compliance Manual (FCCM) (Sept. 2023).
       
4. AFFECTED POLICY: This Directive rescinds and replaces DIR 2019-02, Early Resolution Procedures. The policies and procedures described in the Directive supersede conflicting procedures in the FCCM or other agency guidance to the extent they could be read to conflict.
    
5. BACKGROUND: OFCCP enforces Executive Order 11246, Section 503 of the Rehabilitation Act of 1973 (Section 503), and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA). Collectively, as amended, these laws prohibit federal contractors and subcontractors from discriminating on the basis of race, color, religion, sex, sexual orientation, gender identity, national origin, disability or status as a protected veteran.¹ They also require federal contractors to ensure equal employment opportunity in their employment processes. Contractors also are prohibited from discriminating against applicants or employees because they inquire about, discuss, or disclose their compensation or that of others, subject to certain limitations.
   
   OFCCP assesses federal contractor compliance with these laws primarily by conducting compliance evaluations. However, the number of compliance evaluations OFCCP can conduct annually covers a fraction of the total number of contractors that fall within the agency’s jurisdiction. To increase efficiency, OFCCP will use innovative approaches to increase contractor compliance, reach more establishments, and remedy violations more quickly for the benefit of employees, applicants, and contractors. OFCCP’s regulations provide for expedited conciliation, which permits OFCCP to waive its pre-enforcement notice procedures and offer the contractor an expedited conciliation option.² These procedures help contractors and OFCCP achieve their mutual goal of equal employment opportunity in federal contracting and reduce the length of compliance evaluations through efficient resolutions. Expedited conciliation also allows OFCCP and contractors with multiple establishments to develop enterprise-wide compliance with OFCCP’s requirements. 
   
   On November 30, 2018, OFCCP published DIR 2019-02, first establishing early resolution procedures and general guidelines for its implementation. On November 11, 2020, OFCCP published Nondiscrimination Obligations of Federal Contractors and Subcontractors: Procedures to Resolve Potential Employment Discrimination. This final rule codified an expedited option for resolution applicable to compliance reviews in their early stages. On August 4, 2023, OFCCP published a final rule modifying procedures and standards OFCCP uses when issuing pre-enforcement notices and securing compliance through conciliation. This final rule, Pre-Enforcement Notice and Conciliation Procedures, retained the expedited conciliation option and made general edits to improve procedural efficacy and clarify OFCCP’s role in the expedited conciliation process. DIR 2024-01 provides guidance consistent with the Pre-Enforcement Notice and Conciliation Procedures final rule.
    
6. ROLES AND RESPONSIBILITIES:
    
   1. Regional and Field Managers: It is the responsibility of regional and district directors to ensure that regional and field staff seek to resolve possible violations throughout the compliance evaluation, or at the earliest stage where appropriate, consistent with the policy and procedures stated in this directive. To support case resolutions through expedited conciliation, regional directors may involve OFCCP’s Division of Enforcement as well as the Regional Office of the Solicitor (RSOL). Regional directors must seek RSOL and OFCCP Deputy Director review of expedited conciliation agreements.
       
   2. Regional and Field Staff: It is the responsibility of Investigators and other employees who work on compliance evaluations to act in accordance with the policy stated in this directive.
       
   3. National Office: It is the responsibility of OFCCP’s national office staff involved in compliance evaluations to act in accordance with the procedures stated in this directive.
       
7. POLICIES AND PROCEDURES: Expedited conciliation provides a mechanism for OFCCP to maximize its resources for the benefit of the agency, federal contractors, and workers. Contractors with multiple establishments may find it beneficial and more efficient to resolve issues that OFCCP finds during compliance evaluations proactively through expedited conciliation. Through the expedited conciliation option, OFCCP may waive the pre-enforcement notice procedures and seek enterprise-wide relief. OFCCP may also continue its compliance evaluation process concurrently with ongoing conciliation discussions. Contractors may opt not to engage in expedited conciliation.
    

   1. Non-Discrimination Violations:
      
      Upon completion of the desk audit, OFCCP may seek to resolve non-discrimination violations through an Expedited Resolution Conciliation Agreement (ERCA). If the contractor has multiple establishments, OFCCP may seek an ERCA with an enterprise-wide resolution. “Enterprise-wide” refers to the entire business or organization, including, e.g., academic institutions and non-profits. Examples of violations that fall into this category include, but are not limited to, recordkeeping, applicant tracking, failure to implement audit and reporting systems, and failure to conduct self-analysis. OFCCP will address denial of access to requested data, information, or a facility through the standard process outlined in the FCCM rather than through expedited conciliation.

      1. The ERCA may require the contractor to review all, or a negotiated subset,³ of its remaining establishments for the similar violation(s) during the progress report monitoring period, and if necessary, implement corrective actions at those establishments to eliminate the violation(s) and prevent recurrence. In the progress reports, as outlined in the ERCA, the contractor will report the results of its analysis, findings, any corrective actions, and will provide OFCCP with all supporting documents and information reasonably related to such a review.

      2. If the contractor and OFCCP agree to the terms of the ERCA, OFCCP will not schedule a new compliance evaluation at the scheduled establishment or establishments covered by the ERCA for a three-year period from the effective date of the ERCA.⁴ The covered establishment(s) will be under progress report monitoring for the three-year period, as outlined in the ERCA. If during the three-year period, OFCCP schedules an establishment not covered by the ERCA for a compliance evaluation, OFCCP will conduct the compliance evaluation consistent with its normal policies and procedures.

   2. Discrimination Violations:
      
      OFCCP may offer expedited conciliation to resolve discrimination violations at any time after completion of the desk audit and prior to issuing a Notice of Violation (NOV).⁵ If the contractor has multiple establishments, OFCCP may seek an ERCA with a negotiated subset of establishments or on an enterprise-wide basis. In assessing a case for expedited conciliation, the agency will typically follow the steps outlined below.

      1. Within 14 calendar days of completing the desk audit, when possible, the Investigator must discuss the desk audit findings and potential for expedited conciliation with the district and regional office management. Upon concurrence, the district office will proceed with the evaluation in anticipation of seeking to resolve the matter through expedited conciliation.

      2. The district office may conduct additional investigation to ensure it is confident of any findings before offering expedited conciliation, which may include interviews and additional requests for information.⁶ This information may include electronically available information to refine the indicators and identify potential affected applicants and/or employees, applicant flow logs, and relevant data from human resource information or payroll systems.⁷ OFCCP generally will not request information that is not readily available during expedited conciliation.⁸ The Investigator will provide the contractor 14 calendar days, or another reasonable and mutually agreed upon timeframe, to provide the readily available information to OFCCP.

      3. Upon receipt of the additional information, the Investigator should complete a refined analyses within 14 calendar days. If the refined analyses indicate potential discrimination, the Investigator, Assistant District Director, and/or District Director may contact the contractor to offer expedited conciliation.

      4. If the contractor agrees to engage OFCCP in expedited conciliation, the parties must meet 
      within 14 calendar days of the agreement to discuss OFCCP’s findings, proposed remedy, and corrective actions. This provides an opportunity for the contractor and OFCCP to conciliate likely violations before proceeding with the compliance evaluation and an on-site investigation. However, OFCCP may continue compliance evaluations while expedited conciliation is pending.

      1. During expedited conciliation, the contractor may provide additional information for OFCCP to consider.⁹ If OFCCP determines that the information eliminates the discrimination indicators, the Investigator should seek to resolve, if applicable, any outstanding non-discrimination violations in accordance with the procedures outlined above. Otherwise, the Investigator will close the compliance evaluation with a closure letter.
          
      2. OFCCP may request contractors to provide their proposed financial remedy to resolve the case and the models they used to analyze the data, including the variables, as applicable.
          
      3. For the establishment under review, OFCCP will seek, as applicable, make-whole relief for affected class members, which may include back pay, job offers to affected class members OFCCP has found to meet minimum/preferred qualifications, salary adjustments and/or other appropriate remedies and corrective actions. The ERCA may require the contractor to review all, or a negotiated subset, of its remaining establishments for the similar violation(s) during the progress report monitoring period, and if necessary, implement corrective actions at those establishments to eliminate the violation(s) and prevent recurrence.¹⁰ This may include job offers to affected class members OFCCP has found to meet certain qualifications, salary adjustments, and/or other appropriate corrective actions.
          
      4. OFCCP will monitor implementation of the ERCA, results achieved, and ongoing compliance through progress reports for a three-year period. In the progress reports, as outlined in the ERCA, the contractor will report the results of its analysis, findings, any corrective actions, and will provide OFCCP with all supporting documents and information reasonably related to such a review.
          
      5. If the contractor and OFCCP agree to these terms, OFCCP will not schedule any of the contractor’s establishments covered by the ERCA for a new compliance evaluation for a three-year period, concurrent with monitoring, from the effective date of the ERCA.¹¹
          
      6. If the contractor fails to negotiate in good faith or if negotiations otherwise fail during expedited conciliation, OFCCP will discontinue ERCA negotiations and continue the compliance evaluation.

      5. Conciliation of an ERCA shall ideally last no more than 60 calendar days from the initial meeting referenced above in number 4, subject to extension by OFCCP, as long as the parties are making substantial progress towards an agreement. Examples of substantial progress include situations where the contractor submits all documentation OFCCP requested; OFCCP has conducted interviews; or OFCCP and the contractor have exchanged case valuations.

8. ATTACHMENTS: None.

SIGNATURE:

Michele Hodge
Acting Director
Office of Federal Contract Compliance Programs