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DOL Rescinds Restrictions on Investigating Pay Discrimination 
 

3/1/2013  By Joanne Deschenaux 
 
 

The U.S. Department of Labor (DOL) announced Feb. 26, 2013, that its Office of Federal Contract Compliance Programs (OFCCP) is rescinding two enforcement guidance documents on pay discrimination, originally issued in 2006, commonly known as the “Compensation Standards” and “Voluntary Guidelines.” The rescission is effective Feb. 28.

According to the agency, “These documents significantly constrained OFCCP’s ability to investigate pay discrimination to the full extent permitted by law and did not accomplish their stated goals of making OFCCP compensation enforcement activities more consistent with other federal laws and more focused on systemic discrimination.”

The notice of final rescission includes new guidance for employers setting forth the procedures, analysis and protocols the OFCCP will use going forward when conducting compensation discrimination investigations. The agency also issued frequently asked questions and will add technical assistance, webinars, and other resources and materials to ensure that contractors have information about how to comply with the law.

The agency stated it will follow the “flexible, fact-specific approach” provided by Title VII of the Civil Rights Act to enforce and investigate pay practices.

“This new case-by-case approach will allow the OFCCP to continue to use a range of tools, both investigative and analytical, that compliance officers have been using for several years now,” said Cristina Perez of Ogletree Deakins’ San Francisco office. “The key, however, is that now, this gives some structure to what compliance officers have been doing for years.”

The OFCCP enforces Executive Order 11246, a long-standing executive order that requires federal contractors to comply with anti-discrimination obligations, including prohibitions against pay discrimination.

Joanne Deschenaux, J.D., is SHRM’s senior legal editor.


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