The Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has revised the controversial Pay Equity Audits directive issued earlier this year to clarify that the agency “will not require the production of privileged attorney-client communications or attorney work product.”
As we reported back in March when it was issued, the original directive instructed OFCCP compliance officers (COs) to collect and analyze federal contractors’ “pay equity audits” during routine compliance evaluations, regardless of whether those studies were conducted with the assistance of in-house or outside counsel under the “attorney-client privilege” or “attorney work-product” doctrines. The revised directive in essence acknowledges that this was an overreach on the part of OFCCP.
Importantly, however, although agency compliance officers will not demand the production of privileged documents, revised OFCCP Directive 2022-01, renamed Advancing Pay Equity Through Compensation Analysis, reiterates OFCCP’s position that it “has the authority to review documentation of a contractor’s compensation analysis to confirm that the contractor has evaluated its compensation systems for race, gender-, or ethnicity-based disparities.”
Members of the Center for Workplace Compliance (CWC) can read more here.