US Department of Labor announces proposed rule for modifying procedures to identify, remedy discrimination in federal contracting

The U.S. Department of Labor has announced a proposed modification to a final rule that aims to create a streamlined, efficient and flexible process allowing the department to use its resources strategically to remove barriers to equal employment opportunity.

The proposed rule making seeks to revise the final rule, “Nondiscrimination Obligations of Federal Contractors and Subcontractors: Procedures to Resolve Potential Employment Discrimination,” in effect since Dec. 10, 2020.

Key points

  • The proposed modifications would allow Office of Federal Contract Compliance Programs (‘OFCCP’) to tailor the pre-enforcement process to the specific facts and circumstances of each case, consistent with judicial interpretations of the applicable legal authorities, which will in turn allow OFCCP to more effectively redress unlawful discrimination.
  • In addition, to promote greater efficiency in resolving cases, OFCCP proposes to modify the 2020 rule’s provision that required a contractor to provide a response within 30 calendar days of receiving a Predetermination Notice.
  • The proposal returns the Predetermination Notice response period to the 15 calendar day period in effect prior to the 2020 rule (which OFCCP may extend for good cause). In the proposal, OFCCP also clarifies this provision to state that any response must be received by OFCCP within 15 calendar days.
  • OFCCP also proposes to retain the regulatory language regarding early resolution, which provides that contractors may waive these notice procedures if they enter directly into a conciliation agreement.
  • The proposal would delete the severability clause that applied just to certain sections of OFCCP’s regulations and replace it with severability clauses covering the entirety of each part of OFCCP’s regulatory scheme.

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