As previewed yesterday in OFCCP Interim Director Michelle Hodge’s keynote remarks during the opening day of the NILG 2023 National Conference, OFCCP has released the final rule on “procedures for identifying and remedying discrimination in federal contracting.” Commonly referred to as the PDN rule, the Pre-Enforcement Notice and Conciliation Procedures rule will be officially published in the federal register on August 4, 2023 and will go into effect on September 5, 2023.

Director Hodge announced the release of the final rule in a blog titled “Department of Labor Establishes Final Rule that Promotes Equal Employment Opportunity” in which she reports the new rule

restores flexibility to OFCCP’s pre-enforcement and conciliation procedures, promotes efficiency in resolving cases, strengthens enforcement and promotes alignment of the standards of Title VII of the Civil Rights Act of 1964.  

The new rule modifies the Agency’s earlier “Nondiscrimination Obligations of Federal Contractors and Subcontractors: Procedures to Resolve Potential Employment Discrimination” rule which took effect on December 10, 2020.

In an e-mail from OFCCP announcing the rule, the Agency stated

[t]he 2020 rule imposed inflexible evidentiary requirements early in the agency’s compliance evaluation process and attempted to codify complex definitions for “qualitative” and “quantitative” evidence and other standards. These evidentiary standards and definitions hindered OFCCP’s ability to pursue cases with merit and diverted agency and contractor resources away from addressing discrimination.

We are in the process of reviewing the final rule and will be back soon with further thoughts and insights.