The OFCCP’s Scheduling Letters have been updated. But only slightly!
The Office of Management and Budget has approved the Office of Federal Contract Compliance Programs’ request to revise the Scheduling Letters that initiate compliance evaluations, focused reviews, and compliance checks. The OMB did not approve all of the changes that the OFCCP requested, though.
As we previously reported, the OFCCP initially proposed expansive and troubling changes to its Scheduling Letters. However, after negative feedback from the contractor community, the OFCCP submitted drastically scaled back versions of the letters to the OMB last July. The newly approved and final versions include even fewer changes than requested by the OFCCP in July.
Before these changes, the OFCCP had three ways to initiate an audit of a supply and service contractor:
- Scheduling Letter & Itemized Listing for a Compliance Evaluation
- Scheduling Letter for a Compliance Check
- Scheduling Letter for a Focused Review under Section 503 of the Rehabilitation Act
The OFCCP has now added a fourth mechanism to its arsenal -- the Scheduling Letter for a Focused Review under the Vietnam Era Veterans’ Readjustment Assistance Act, and the language and format of this letter tracks that of the new Section 503 Focused Review letter.
The new Scheduling Letters are not substantially different from the current letters. Significantly, the new letters do not include some of the more concerning aspects of the proposals to OMB.
What proposed changes are not included in the new versions of the letters?
The Scheduling Letter & Itemized Listing for a Compliance Evaluation does not include
- The requirement to provide a list of the three most recently awarded subcontracts.
- The request for workforce representation of the job groups from which individuals were promoted.
The most significant changes were made to the proposed Scheduling Letter for Focused Reviews under Section 503 and VEVRAA, and the changes benefit contractors. The following items were removed and are not included in the approved versions:
- Detailed data on applicants and employees, including all self-identification information; whether individuals were hired, promoted, or terminated; the job titles and job groups for all applicants, hires, promotions, and terminations; and dates of hires and promotions.
- Detailed compensation information for all employees.
The requirement to submit the entire written affirmative action plans for Executive Order 11246, Section 503, and VEVRAA was eliminated from the Scheduling Letter for a Compliance Check; this was replaced with the existing requirement that contractors provide the results of the AAPs for the prior year.
How much do the new versions differ from the OFCCP’s existing letters?
Actually, not much. Some of the substantive changes include the following:
- As noted above, the OFCCP now has the authority to conduct Focused Reviews under VEVRAA. The agency issued a CSAL (Corporate Scheduling Announcement List) for VEVRAA Focused Reviews last November, so contractors on that list (FY 2019 CSAL Supplement) should be prepared for such an audit.
- Where female and minority goals are not attained, contractors must “describe the specific good faith efforts made to remove identified barriers, expand equal employment opportunity, and produce measurable results." (Itemized Listing for a Compliance Evaluation, #17(c)).
- The Focused Review letter no longer requires the separate submission of job group formation. However, this information is included in the Executive Order 11246 AAP (which must still be submitted), so its elimination simply removed a redundancy.
- The Focused Review letter now omits documentation demonstrating compliance with the audit and reporting system components of the regulations.
- EEO-1 Reports are no longer a component of the Focused Review letter.
The OFCCP says that it intends to continue issuing Scheduling Letters and conducting compliance evaluations notwithstanding the COVID-19 pandemic, so contractors on the CSAL lists should be preparing for the upcoming audits. If extensions are needed during this turbulent time, contractors should communicate with the compliance officer to obtain the necessary additional time.
PartnerCara co-chairs Constangy’s practice groups relating to EEO/Contractor Compliance, Reporting & Analytics, and DEI Compliance. She advises employers on proactive strategies to help avoid litigation and has defended employers ...
From developments in pay equity and changing requirements in data reporting, to DEI risk mitigation, Title VII compliance, and shifts in enforcement of Section 503 & VEVRAA, the EEO Compliance Dispatch blog is designed to keep employers informed and ahead of the curve.
Whether you’re a federal contractor navigating audits, an HR professional tackling pay transparency, or in-house counsel tracking state and local reporting requirements, our updates, legal analysis, and compliance strategies are tailored to help you manage risk and support a more inclusive workplace.
