OFCCP Cuts PDN Response Time
Starting September 5, 2023, contractors must respond to Predetermination Notices (PDNs) from the Office of Federal Contract Compliance Programs (OFCCP) within 15 days, down from the previous 30-day grace period. OFCCP believes this change will streamline their pre-enforcement process, allowing them to focus on substantive compliance evaluations rather than procedural disputes.
Extensions are possible for “good cause,” such as:
- Extended medical absences
- Unexpected military service
- Local disasters affecting records retrieval
- Family emergencies
- Severe weather
- Tech meltdowns
The reduced response time aims to foster more fluid, back-and-forth exchanges between contractors and OFCCP, leading to quicker resolutions. By making the process more efficient, OFCCP believes it’s a win-win: contractors get quicker final decisions, and the agency can better allocate its limited resources to substantial compliance work.
The reduced response window escalates pressure on federal contractors. The 15-day margin presents challenges in gathering comprehensive data, consulting with legal teams, and formulating cogent responses. Missing the most minor detail could pave the way for unnecessary enforcement actions.
Smaller contractors with limited resources will particularly feel the crunch, potentially putting them at a disadvantage. The new cadence also tests relationships with external partners, as legal advisors, HR departments, and data specialists must sync seamlessly under significant time constraints.
On a positive note, this shift could encourage contractors to maintain a state of readiness, fostering a culture of continuous audit readiness and proactive compliance measures. However, contractors must also brace for an uptick in costly and resource-intensive disputes due to the heightened risk of misinterpretations and hasty conclusions from both sides.
Balancing rapid response with thorough preparation becomes key. Embracing this change can yield benefits, but only if contractors harness agility and maintain rigorous compliance frameworks.
OFCCP has recalibrated the conciliation process by abandoning the rigid evidentiary standards that previously governed the issuance of pre-determination notices (PDNs) and notices of violation (NOVs). The 2023 final rule replaces these layers with a more flexible approach that allows OFCCP to efficiently move through compliance evaluations without getting bogged down in procedural mire.
OFCCP no longer needs to adhere to stringent evidentiary standards when defining preliminary findings of potential discrimination. Based on their comprehensive review of the data, they can now act on credible indicators. Additionally, OFCCP can issue NOVs that include violations not previously cited in the PDNs, allowing their conciliation process to reflect the dynamics at play more accurately.
Contractors must stay nimble, ready to engage promptly with OFCCP’s evolving findings. The expectation is for a more dynamic interaction where initial PDNs are not the final verdict but rather an opening move. Contractors might see the spectrum of their compliance issues widen throughout the evaluation, but this also means they have multiple opportunities to address violations as they arise, potentially reducing the likelihood of protracted disputes and facilitating quicker resolutions.
The new conciliation process demands contractors bolster their internal compliance structures, ensuring they’re reactive and continuously proactive. By integrating robust audit protocols and keeping up-to-date records, contractors can better withstand the rigorous, swift evaluations that characterize OFCCP’s modernized approach.
- Office of Federal Contract Compliance Programs. Predetermination Notice Response Time Reduced to 15 Days. Federal Register. 2023;88(170):53077-53079.
- Department of Labor. OFCCP Modernizes Its Approach to Conciliation. News Release. August 29, 2023.
