In the first agency directive issued since she was appointed, Office of Federal Contract Compliance Programs (OFCCP) Director Jenny Yang has instructed OFCCP compliance officers (COs) to collect and analyze federal contractors’ “pay equity audits” during routine compliance evaluations, regardless of whether those studies were conducted with the assistance of in-house or outside counsel under the “attorney-client privilege” or “attorney work-product” doctrines.
OFCCP Directive 2022-01, Pay Equity Audits, is designed to “provide guidance on how OFCCP will evaluate federal contractors’ compliance with pay equity audit obligations and clarify OFCCP’s authority to access and review pay equity audits.” According to the new directive, while “federal contractors often retain counsel to assist with the preparation of the pay equity audit and compliance records required by OFCCP’s regulations, contractors cannot withhold these documents by invoking attorney-client privilege or the attorney work-product doctrine.”
Not surprisingly, Directive 2022-01 is already generating a considerable amount of pushback from contractors and their representatives questioning whether the agency has the authority to demand documents prepared under a legal privilege.
Members of the Center for Workplace Compliance (CWC) can read more here.