It is unusual for OFCCP to receive or investigate individual complaints. Most OFCCP actions are an outgrowth of an affirmative action compliance review rather than an individual complaint. With that said, OFCCP does have the right to investigate complaints regarding violations of its regulations, and applicants and employees do have certain protections regarding the discussion of pay under the agency's revisions to the Executive Order 11246 regulations. These revisions are an outgrowth of Executive Order 13665, which is titled "Non-Retaliation for Disclosure of Compensation Information". (The regulations themselves, interestingly, are titled "Government Contractors, Prohibitions Against Pay Secrecy Policies and Actions." They can be found in the Federal Register at https://www.gpo.gov/fdsys/pkg/FR-2015-09-11/pdf/2015-22547.pdf.) Regardless of what they are called, the revisions to Executive Order 11246 prohibit federal contractors and subcontractors from taking action against applicants or employees for discussing pay. The relevant language is as follows: 41 CFR Section 60-1.4(a)3: "The contractor will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. This provision shall not apply to instances in which an employee who has access to the compensation information of other employees or applicants as a part of such employee’s essential job functions discloses the compensation of such other employees or applicants to individuals who do not otherwise have access to such information, unless such disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or is consistent with the contractor’s legal duty to furnish information." Note that not all discussions about pay are protected, and it appears your situation may fall into one of the exceptions to the prohibition against taking action for discussion pay. The important language in the federal language for these purposes is as follows: 41 CFR Section 60–1.35: Contractor obligations and defenses to violation of the nondiscrimination requirement for compensation disclosures. (a) General defenses. A contractor may pursue a defense to an alleged violation of paragraph (3) of the equal opportunity clauses listed in § 60–1.4(a) and (b) as long as the defense is not based on a rule, policy, practice, agreement, or other instrument that prohibits employees or applicants from discussing or disclosing their compensation or the compensation of other employees or applicants, subject to paragraph (3) of the equal opportunity clause. Contractors may pursue this defense by demonstrating, for example, that it disciplined the employee for violation of a consistently and uniformly applied company policy, and that this policy does not prohibit, or tend to prohibit, employees or applicants from discussing or disclosing their compensation or the compensation of other employees or applicants. (b) Essential job functions defense. Actions taken by a contractor which adversely affect an employee will not be deemed to be discriminatory if the employee has access to the compensation information of other employees or applicants as part of such employee’s essential job functions and disclosed the compensation of such other employees or applicants to individuals who do not otherwise have access to such information, and the disclosure was not in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the contractor, or is consistent with the contractor’s legal duty to furnish information." It is possible OFCCP will take the position that your former employee was not acting improperly if she did not share the pay information with others and you do not have a policy that explicitly prohibits HR employees from looking at the pay of other employees. That will be something you should be prepared to discuss during this OFCCP investigation. You asked whether the former employee needs to have her retaliation claim based on race, sex, veteran, or disability status. The answer here is "no." The prohibition against retaliation for discussing pay is decoupled from the traditional protected classes that are the usual subjects of an OFCCP investigation. You may want to have a conversation with an attorney who is very familiar with OFCCP laws and regulations about the complaint that has been filed. The pay secrecy rules (also called the pay transparency rules) are relatively new and the situation you discuss above is potentially a complicated situation under these regulations.

You can use this OFCCP audit checklist to ensure you're doing what is required to maintain OFCCP's regulations including VEVRAA, Section 503, and EO 11246. Or request a demo to streamline your compliance and recruiting efforts.