Part 1: New OFCCP Directive on “Pay Equity Audits” Raises More Questions Than it Answers – JD Supra – DC Initiative on Racial Equity
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Fourth, Another Stopper to this Attempted Rule Rewrite: Any Definition of “Evaluate” Will Do

OFCCP has well-defined this Rule over 150,000 OFCCP audits. There is now a “longstanding” practice as to what the language of 41 CFR Section 60-2.17(b)(3) means. (That word “longstanding” is in quotes because we will find in a moment that it is a loaded legal “term of art” within the meaning of the Administrative Procedure Act (“APA”). The APA operates as a limit on OFCCP’s ability to now run off and define 41 CFR Section 60-2.17(b)(3) in some new way.

And remember, the new Directive as a matter of law and as a matter of its own self-proclaimed “Interpretation” (see para 8 of the new Directive quoted above), “…does not create new legal rights or requirements or change current legal rights or requirements for contractors.”

41 CFR Section 60-2.17(b)(3) simply means that the contractor must have some evaluation, any evaluation, any kind of an evaluation whatsoever (since OFCCP’s Rule does not specify what the contractor must do other than to “evaluate” “compensation system(s).” What this has meant in the “real world” of OFCCP audits for two decades is that any of the follow


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