ARTICLE · 24 MARCH 2022

OFCCP Proposes Changes To Pre-enforcement Notice And Conciliation Procedures

Ogletree, Deakins, Nash, Smoak & Stewart

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It would retain the use of predetermination notices and notices of violation but modify the applicable procedures.

United StatesGovernment, Public Sector

Emily M. Halliday

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On March 21, 2022, the Office of Federal Contract Compliance Programs (OFCCP) announced that it would publish a notice of proposed rulemaking (NPRM), entitled "Pre-enforcement Notice and Conciliation Procedures," in the Federal Register on March 22, 2022. OFCCP's proposal would modify a 2020 final rule that had codified various procedures to resolve potential employment discrimination.

OFCCP's announcement included a link to a blog post by OFCCP Director Jenny Yang. According to Yang, "[t]he 2020 rule unduly constrained OFCCP's broad enforcement discretion. Its imposition of formulaic proof standards to be applied to every case harms workers by undermining OFCCP's ability to effectively bring the full range of cases within its authority and remove barriers to equal employment opportunity." The 2020 final rule, "Nondiscrimination Obligations of Federal Contractors and Subcontractors: Procedures to Resolve Potential Employment Discrimination," had codified OFCCP's use

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