OFCCP Issues Directive on Consistent Use of the Predetermination Notice (PDN)
On February 27, 2018, OFCCP Director Ondray Harris issued OFCCP Directive 2018-01. The directive is intended to provide guidance to OFCCP staff on the compliance process and procedure regarding the use of Predetermination Notices (PDN) and ensure consistency. The PDN is a letter that OFCCP issues to notify federal contractors and subcontractors, in an active compliance evaluation, of the agency’s preliminary findings of employment discrimination. In recent years, OFCCP has typically reserved use of the PDN for systemic discrimination cases and permitted regional and district offices discretion in whether to issue the PDN prior to issuing a Notice of Violation (NOV).
As part of OFCCP’s ongoing efforts to achieve consistency across regional and district offices, and their stated desire to “increase transparency with contractors,” OFCCP is now instituting a uniform approach to the use of PDNs in compliance evaluations where the agency believes discrimination findings may exist. Regional office discretion is no longer permitted on whether or not to utilize the PDN.
This directive is intended as interim guidance until OFCCP revises the Federal Contractor Compliance Manual (FCCM) to reflect this change. This directive supersedes contrary guidance found in the current form of the FCCM. At this point, any NOV not yet issued must be held until a PDN is issued first. To note, it has been several years since DCI has seen the use of a PDN prior to a contractor receiving a NOV from OFCCP.
By Joanna Colosimo, Director of EEO Compliance, and Amanda Shapiro, Associate Principal Consultant, at DCI Consulting Group