Increasingly, the Department of Labor’s (DOL) Office of Federal Contract Compliance Programs (OFCCP) is reaching settlements by using its Early Resolution Procedures (ERPs) in cases where alleged violations at a single establishment indicate that the alleged violations may be corporate-wide.

Indeed, OFCCP has reported obtaining a record total of more than $40 million in monetary relief for affected individuals in FY 2019, more than half of which is linked to settlements involving the agency’s ERP program.

OFCCP’s ERPs, which are set forth in ERP Program Directive 2019-02, are designed to resolve potential discrimination violations at multiple establishments at the early stages of an OFCCP compliance evaluation/audit. Settlements under the program are referred to as Early Resolution Conciliation Agreements (ERCAs).

While the ERP settlements publicized to date have generally followed the directive’s settlement “formula,” some of them have deviated in significant ways. For example, ERCAs are being negotiated to resolve aging audits, and are being used to resolve what appear to be separate and sometimes only loosely-related discrimination findings at multiple establishments. In addition, the five-year corporate-wide moratorium that comes as a trade-off for agreeing to an ERCA has been applied in some cases to all establishments, not just the establishments at issue in the ERCA.

Based on our analysis of the ERCAs that we have been able to review, the way the ERP program is being implemented may be worthy of consideration by contractors undergoing an OFCCP audit, especially those that have multiple aged audits where OFCCP is alleging violations.

Members of the Center for Workplace Compliance (CWC) can read more here.