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ARTICLE · 25 AUGUST 2023

OFCCP Issues Final Rule Dialing Back Transparency Promised In 2020 Predetermination Notice Regulation

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Executive Summary: On August 4, 2023, the U.S. Department of Labor, Office of Federal Contract Compliance Programs (OFCCP)...

United StatesGovernment, Public Sector
Consuela A. Pinto
Consuela A. Pinto
Nancy Van Der Veer Holt
Nancy Van Der Veer Holt
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Executive Summary: On August 4, 2023, the U.S. Department of Labor, Office of Federal Contract Compliance Programs (OFCCP) published a final rule amending the 2020 pre-enforcement regulations colloquially referred to as the "PDN Rule." A PDN or a Predetermination Notice is a letter that OFCCP issues to notify contractors, currently undergoing a compliance review, that the agency has identified preliminary indicators of potential discrimination. The PDN provides contractors with an early opportunity to respond prior to OFCCP issuing a Notice of Violation (NOV). The 2020 PDN Rule was hailed by OFCCP as a sign of its commitment to transparency and early, efficient resolution of open audits. While the final rule does not eliminate the requirement that OFCCP issue a PDN, the level of transparency promised and the evidentiary standard for issuing the PDN have been significantly reduced.

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