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Legal Alert: OFCCP Updates Non-Retaliation Policy

Date   Apr 15, 2013
The Office of Federal Contract Compliance Programs (OFCCP) has issued an announcement both reassuring covered contractors that seeking compliance assistance will not trigger a compliance review but also noting that seeking such compliance assistance will not shield the company from a review scheduled in accordance with OFCCP's selection guidelines.

Executive Summary:  The Office of Federal Contract Compliance Programs (OFCCP) has issued an announcement both reassuring covered contractors that seeking compliance assistance will not trigger a compliance review but also noting that seeking such compliance assistance will not shield the company from a review scheduled in accordance with OFCCP's selection guidelines.  

  • The first policy reiterates the OFCCP's position that an employer's request for information and compliance or technical assistance will not trigger a compliance evaluation.  The policy also states, however, that requests for information or technical assistance will not protect employers against compliance evaluations conducted pursuant to existing policy, scheduling guidelines or OFCCP investigation programs.  
  • The second policy states that the OFCCP will not retaliate against federal contractors covered by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) who file comments regarding the agency with the National Small Business Ombudsman.  The filing of such comments does not, however, affect the OFCCP's authority to enforce or seek compliance with the laws and regulations it enforces.  

The Bottom Line:

In light of the OFCCP's increasingly aggressive enforcement actions, contractors may have questions or concerns regarding compliance that they would like to raise with the OFCCP.  With this update, the agency appears to be reassuring contractors that doing so will not trigger a compliance evaluation.  Additionally, OFCCP assures small businesses that they can express their concerns about the agency's activities with the National Small Business Ombudsman without fear of retaliation.   

If you have questions regarding your affirmative action or nondiscrimination obligations as a federal contractor, please contact the FordHarrison attorney with whom you usually work or Linda Cavanna-Wilk, lcavanna-wilk@fordharrison.com, or any member of FordHarrison's Affirmative Action/Government Contracts Practice Group