On August 18, 2022, OFCCP issued a revised Directive 2022-01 (the
“Revised Directive”) clarifying that contractors will
not be required to provide any privileged pay analysis conducted
for purposes of compliance with 41 C.F.R. §
60-2.17(b)(3). Although OFCCP's clarification is welcome
news for contractors, the Revised Directive states that contractors
will still need to be able to prove the analysis was done under
privilege to withhold it from OFCCP and, if withheld on privilege
grounds, OFCCP will require contractors to provide various types of
additional documentation and information to confirm they conducted
a 2.17(b)(3) analysis.
Background
As we previously
discussed, OFCCP issued Directive 2022-01 in March 2022 (the
“Directive”), addressing how it will review and request
compensation information during compliance evaluations. In the
Directive, OFCCP indicated that it did not believe contractors
could refuse to provide to OFCCP their pay analyses done to
