The OFCCP issued their first formal directive during the Biden Administration on March 15. DIR 2022-01 “Pay Equity Audits” provides guidance on how the OFCCP will evaluate contractor’s compliance with pay equity during audits, and clarifies the OFCCP’s authority to access and review pay equity audits. The regulations do not currently require or specify a “pay equity audit,” rather they only require contractors to “evaluate” their compensation systems for disparities. During the desk audit phase, the OFCCP typically requests contractors’ data related to employee compensation, and if it returns potential pay disparities, they may seek additional information from contractors. According to this new directive, however, the agency states it has the authority to request contractors’ to “provide a complete copy of the pay equity audit(s)…that shows all pay groupings that were evaluated, any variables used, and the results of the analyses, including any disparities found.” The directive also states that contractors “cannot withhold these documents by invoking attorney-client privilege or the attorney work-product doctrine.” This directive showcases the OFCCP’s continued and increasing targeted efforts to promote contractors’ pay equity and transparency.
