On March 15, 2022, the Office of Federal Contract Compliance Programs (OFCCP) issued a new Directive clarifying covered contractors’ obligation to conduct pay equity audits on an annual basis. Quite notably, the OFCCP issued the new Directive on Equal Pay Day. Directive 2022-01, Pay Equity Audits, clarifies OFCCP’s expectations with respect to contractors’ compliance with the regulatory requirement in 41 CFR 60-2.17(b)(3) to perform an in-depth analysis of their total employment process, including their compensation program, to determine whether there are impediments to equal employment opportunity such as gender- or race/ethnicity-based pay disparities.
Increasingly, in audits where OFCCP identifies an indicator of pay discrimination, the agency is requesting that contractors provide the analysis they conducted in compliance with 2.17(b)(3). Contractors generally object to this request taking the position that the analysis is privileged because it was conducted under the advice of counsel and is a voluntary self-audit that is not part of any compliance evaluation. Direc
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