OFCCP Issues Last Directive Under CERT Principles for OFCCP Policies and Practices

Under the leadership of Director Craig Leen, the Office of Federal Contract Compliance Programs (OFCCP) advanced four thematic foundations of Certainty, Efficiency, Recognition and Transparency (the CERT principles) to improve governance and ensure federal contractors understand agency expectations. Now readying for the upcoming administrative transition, the OFCCP continues to rapidly issue rules and directives to further solidify its guidance. On December 15, 2020, the OFCCP issued the Certainty Directive as its fourth and final directive under the CERT principles. The Certainty Directive reaffirms the agency’s commitment to a number of its initiatives and principles and establishes a process to streamline the ongoing delivery of clarity and certainty in OFCCP policies and practices. In addition, the Certainty Directive extends the moratorium applicable to Veterans Affairs Health Benefits Program (VAHBP) providers.

A Refresher on the CERT Principles

The CERT principles seek to “commit OFCCP to certainty in the policies and practices it enforces, efficiency in the conduct of its compliance evaluations, recognition of top-performing stakeholders and best practices, and transparency in information sharing and engagement with the stakeholder community.” The OFCCP previously issued three directives under the CERT principles:

• The Efficiency Directive is an operational initiative and review process, which seeks to increase the agency’s capacity to conduct additional audits by closing compliance evaluations more rapidly and keeping aged cases to less than 15% of the OFCCP’s total caseload.
• The Recognition Directive seeks to highlight the achievements of contractors with high-quality and high-performing compliance programs and initiatives.
• The Transparency Directive extended the OFCCP’s transparency initiative to all stages of compliance evaluations, with the mission of providing clear direction to manage contractor expectations during a compliance evaluation and offer the option for obtaining agency compliance support.

Details on the Certainty Directive

The new Certainty Directive is primarily built on the foundation of the OFCCP’s previously published “What Federal Contractors Can Expect,” which articulates eight expectations and commitments of the OFCCP:

• Access to accurate compliance assistance materials
• Timely responses to compliance assistance questions
• Opportunities to provide meaningful feedback and collaborate
• Professional conduct by the OFCCP’s compliance staff
• Neutral scheduling of compliance evaluations
• Reasonable opportunity to discuss compliance evaluation concerns
• Timely and efficient progress of compliance evaluations
• Confidentiality

Similarly, the OFCCP has also previously issued guidance in the form of the Contractor Assistance Portal, the Contractor Compliance Institute, Compliance Assistance Guides and the Federal Contract Compliance Manual, among other resources.

Looking ahead, the Certainty Directive commits the OFCCP to conduct ongoing reviews of its policies and practices to ensure they are clear to the federal contracting community. The OFCCP’s policy director and director of enforcement are primarily tasked with implementing the Certainty Directive and are responsible for reviewing the OFCCP’s policies and enforcement practices, which will be evaluated on a recurrent basis to ensure clarity and remove uncertainty, where possible. The OFCCP’s policy director and director of enforcement are also charged with providing periodic reports to the OFCCP director and deputy directors, in addition to flagging any requests received through the process. Given the complexities of compliance in a changing regulatory environment and the overall uptick in enforcement, the Certainty Directive will hopefully provide some measure of transparency and openness, giving government contractors the opportunity to minimize the risk inherent in doing business with the government.

In addition, the Certainty Directive extends the moratorium as applicable to VAHBP providers until May 7, 2023. The OFCCP recently voiced concerns that the expiration of the VAHBP enforcement moratorium may cause health care providers not to contract with the U.S. Department of Veterans Affairs, which could in turn reduce protected veterans and their families from accessing health care. During the extension, the OFCCP will consider whether a national interest exemption for VAHBP providers is warranted. Notably, while the moratorium provides an exemption on the enforceability of affirmative obligations, VAHBP providers are not excused from their nondiscrimination obligations or from being subject to investigations.

The OFCCP’s directives are intended to provide guidance to the OFCCP and federal contractor community and do not change laws and/or regulations governing the OFCCP’s programs. Although directives can be rescinded, those aimed at the agency’s CERT principles have been generally well-received by the contractor community and provided welcome clarification regarding the OFCCP enforcement efforts.