OFCCP Will Not Require Disclosure of Attorney-Protected Pay Equity Analyses


Federal Contractors 


August 18, 2022



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The Office of Federal Contract Compliance Programs (OFCCP) revised its requirement that federal contractors disclose internal pay equity audits. On March 15, 2022, the OFCCP issued a directive clarifying a regulatory requirement that qualified contractors must implement an equal employment opportunity and affirmative action program which includes an evaluation of whether and where gender, race, or ethnicity-based pay disparities exist. The directive also stated the OFCCP could access internal pay equity audits including those protected by attorney-client or work product privilege during a compliance review. This interpretation was heavily criticized.  


In a response to the criticism, the OFCCP clarified production of pay equity analyses and related communication protected under attorney work-product and attorney-client privilege will not be required. However, federal contractors must do more than just assert a blanket privilege. The alternatives for compliance are to: 1) produce a redacted version of its compensation analysis; 2) conduct a separate analysis during the relevant Affirmative Action Plan period that does not implicate privilege concerns; or 3) generate a detailed affidavit that sets forth the required compliance but does not contain privileged material. Additionally, the following information is not considered privileged: 1) when the compensation analysis was completed; 2) the number of employees the compensation analysis included and the number and categories of employees the compensation analysis excluded; 3) which forms of compensation were analyzed and, where applicable, how the different forms of compensation were separated or combined for analysis; 4) that compensation was analyzed by gender, race, and ethnicity; and 5) the method of analysis employed by the contractor. Employers concerned about disclosure of their attorney-client or work product privileges should consult with their legal counsel as soon as they are aware of an OFCCP compliance review. 


Action Items 

  1. Review pay equity audit disclosure requirements with legal counsel. 
  2. Implement process for alternative production to meet compliance requirements. 
  3. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance. 


Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2022 ManagEase