Consistent with the goal of assisting federal contractors, OFCCP is moving to create a mediation program with Directive (DIR) 2020-03.  The purpose would be to “resolve findings of discrimination violations” before being sent for enforcement and litigation.

In this case, mediation is used to move toward a resolution of a dispute by using a third party. The third-party mediator is the facilitator between the contractor and OFCCP. This mediator will be chosen from a few particular groups:

  • Federal Mediation and Conciliation Service (FMCS)
  • OFCCP Ombudsman
  • Any qualified individual proposed by the contractor

Both the contractor and OFCCP suggest three possible mediators to the other party. Each proposed candidate will be ranked by the parties, and the person with the highest ranking will be selected as the mediator.

It’s important to note that the mediator is not handing out a ruling or making a final decision. The mediator simply helps the other parties talk through their options and, ideally, reach an outcome that satisfies all parties.

The directive lays out a long list of procedures in place to ensure cooperation, fairness, and efficiency. In each case, it is expected that contractors and OFCCP set forth agreed-upon parameters for the mediation’s structure and timeline.

This directive also expresses two types of cases where OFCCP can bypass the use of mediation. The first is if “the issuance of an access Show Cause Notice (SCN) due to the expedited” and legal aspect of the cases.

OFCCP may also forego mediation in the “very rare case” it moves directly to enforcement, “without issuing an SCN based on exceptional circumstances:”

  • Gain clarity on each other’s positions;
  • Identify all relevant issues and interests;
  • Receive an impartial perspective about the possibilities for resolution;
  • Strategize around concession-making and settlement offers;
  • Consider alternative methods to achieving resolution; and
  • Design a plan for next steps if settlement is not possible.

As with Directive (DIR) 2020-02, there are no new legal requirements or adjustments to the current rights for contractors. If you’re looking for more insight into what you need to ensure OFCCP compliance and audit success, feel free to reach out.

 

Author

Tim Muma