On August 4, 2023, the OFCCP published a final rule titled “Pre-enforcement Notice and Conciliation Procedures.” The final rule clarifies the OFCCP’s use of the Predetermination Notices (PDN) and Notice of Violation (NOV) as pre-enforcement procedures. A PDN is a letter in which the OFCCP notifies the contractor of its preliminary finding that the contractor has engaged in discrimination and offers the contractor the opportunity to respond.
The final rule clarifies the OFCCP’s use of the PDN and NOV as pre-enforcement procedures and restores the distinct purposes of each notice rather than requiring them to use two notices with duplicative evidentiary standards. The provisions in the 2023 final rule provide the agency the flexibility to issue a PDN to a contractor at the point where the OFCCP has reached a preliminary finding of potential discrimination, based on the available facts and data. The appropriate time to issue this notice will depend upon the facts and circumstances of each compliance evaluation. The OFCCP will continue to conduct an onsite review before issuing a PDN where it determines that further information is beneficial to assess whether preliminary findings of potential discrimination exist.
According to the OFCCP, the 2020 rule imposed inflexible evidentiary requirements early in the agency’s compliance evaluation process and attempted to codify complex definitions for “qualitative” and “quantitative” evidence and other standards. The agency further argued that these evidentiary standards and definitions hindered the OFCCP’s ability to pursue cases with merit and diverted agency and contractor resources away from addressing discrimination. The 2023 final rule strengthens the OFCCP’s enforcement by rescinding these evidentiary standards.
The OFCCP has provided FAQs with more information about the final rule.
