Secretary Walsh reverses ARB in OFCCP v. Convergys

On July 1, 2022, U.S. Department of Labor (DOL) Secretary Martin J. Walsh reversed the Administrative Review Board’s long-running OFCCP v. Convergys decision, holding the Office of Federal Contract Compliance Programs’ (OFCCP) request to review documents off-site through its scheduling letters is only required to meet the mere reasonableness standard of administrative subpoenas. Using the new oversight authority instituted by former DOL Secretary Eugene Scalia for the first time, Secretary Walsh rejected Convergys’ claim that being required to respond to 16 audits was unduly burdensome, reinstated the administrative law judge’s decision, and ordered the company to respond to the scheduling letters within 30 days.

Contractor portal certification date not extended

Federal contractors and subcontractors were required to register and certify on the OFCCP Contractor Portal by June 30, 2022. The agency has previously explained that the portal must remain open so new contractors can certify. New contractors must develop their affirmative action plans within 120 days of becoming a federal contractor and must certify within 90 days.

Some commentators claimed the portal remained open because the OFCCP extended the deadline for certification. When asked whether the deadline had been extended, the agency stated that while contractors are able to certify after June 30, those that certify after the deadline will be more likely to be selected for an audit except for those that had technical difficulties in registering and are waiting for help from the Help Desk.