The Revised OFCCP Guidance: How You Can Demonstrate Your Compensation Compliance and Maintain Attorney-Client Privilege

| August 24, 2022 | 3 min read
How New OFCCP Guidance Impacts Pay Equity Analyses

This article was originally published on May 20, 2022. It was last updated on August 24, 2022.

Recently, the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) issued Revised Directive 2022-01, providing more guidance as to how OFCCP will ensure that companies conduct required compensation analyses and prove it.

Companies that have federal contracts or subcontracts are required to conduct annual, in-depth analyses of their compensation systems. Companies use many approaches to evaluate the pay of their employees to meet this requirement, often conducting privileged pay equity analyses. The Revised Directive gives companies more flexibility as to how they can prove to OFCCP they conducted the compensation review, without waiving the attorney-client privilege.

 

What does this mean for your pay equity audits?

You can conduct a privileged pay analysis — and prove it to OFCCP — with Syndio’s support.

On August 18, 2022, the OFCCP issued Revised Directive 2022-01 which moderated the position OFCCP took in the Original Directive 2022-01, issued on March 15, 2022.  

The Original Directive caused a swirl of confusion among many federal contractors and subcontractors as they tried to determine how they can continue to lean into the push for greater pay transparency, the desire to continue to conduct detailed, privileged pay equity analyses, and the need to meet OFCCP compliance obligations. The Revised Directive 2022-01 provides more flexibility in meeting compliance obligations, while still conducting privileged compensation analyses and meeting goals to embed workplace equity within an organization.

Under the Revised Directive, companies can conduct detailed, privileged pay equity analyses and prove that they are meeting the OFCCP’s compliance obligations without waiving privilege. For example, companies can:

  • Provide a redacted version of its compensation analysis; 
  • Generate a detailed affidavit, outlining the date, scope, reach, and methodology of the analysis; 
  • Or conduct two analyses — one privileged and one compliance-focused intended for delivery to OFCCP — as outlined in the Original Directive. 

 

At Syndio, we have a solution that will allow you to use our Workplace Equity Platform to conduct privileged pay reviews. Syndio can also support providing documentation to OFCCP, without waiving privilege.

 

What’s the solution for complying with the Directive?

With Syndio’s unique combination of best-in-class software and expert support, we can help contractors conduct both privileged pay equity reviews and prove it in compliance with this Revised Directive, Executive Order 11246, and other regulatory requirements.

PayEQ empowers organizations to analyze, resolve, and prevent pay disparities due to gender, race, ethnicity, or any other demographics, and is also the ideal solution for OFCCP reviews. The software lets you create multiple, separate “workspaces,” including one for each AAP establishment or FAAP.

But Syndio doesn’t just offer a software solution; we also provide expert advice as part of our integrated support model. Our consultants include top minds in OFCCP compliance, compensation strategy, global legal compliance, labor economics, data science, and pay equity. They partner with you every step of the way — from long-term pay equity strategy, pay transparency, and reporting laws to custom analyses and communications best practices. 

Syndio can help you prepare a redacted version of your privileged compensation analysis, provide a template or prepare a detailed affidavit showing that the company conducted its compensation review, or, with Syndio’s expert advisors, conduct a compliance-focused analysis outside of the platform.

Federal contractors are taking a variety of approaches to complying with Revised Directive 2022-01. There is no “one size fits all” and our conversations with customers and other large federal contractors have shown us that different employers want different types of support. As a result, we are working with federal contractors to conduct privileged analyses and prove it.

Want to know more about how Syndio helps with OFCCP compliance? Click below to learn how Syndio can assist you in conducting more bespoke analysis while allowing maximum flexibility in complying with Executive Order 11246, Directive 2022-01, and other regulatory requirements.

 

The information provided herein does not, and is not intended to, constitute legal advice. All information, content, and materials are provided for general informational purposes only. Links to third-party or government websites are offered for the convenience of the reader; Syndio is not responsible for the content on linked pages.