New OFCCP Scheduling Letter: Everything you say may be used against you.

And you don’t have the right to remain silent.

Kristine Sims

On July 1 the federal Office of Management and Budget published the OFCCP's revised Scheduling Letter and Itemized Listing that is issued to federal contractors to begin the compliance review process.

The revised Scheduling Letter and Itemized Listing is here.

The majority of the changes to the letter, last revised in 2014, provide more explanation regarding the information being requested, and the OFCCP’s investigative process and enforcement activities.

One change is noteworthy. The new letter contains a clear warning that the information submitted can and will be used against you. Or may be. Or may be requested by others (using the Freedom of Information Act and other laws) to be used against you. Here is the key passage:

Please also be aware that OFCCP may use the information you provide during a compliance evaluation in an enforcement action. We may also share that information with other enforcement agencies within [the U.S. Department of Labor], as well as other federal civil rights enforcement agencies with which we have information sharing agreements.

Finally, the public may seek disclosure of the information you provide during a compliance evaluation. Under current law and regulations, OFCCP is required to comply with Freedom of Information Act, the Trade Secrets Act, the Privacy Act, and the 1987 Executive Order governing the disclosure of confidential commercial information.

The revised letter also eliminates language from the previous Scheduling Letter that assured federal contractors that information provided in response to the Scheduling Letter would be treated as “sensitive and confidential” and disclosed only as required by the Freedom of Information Act. The new letter simply warns that the public may seek disclosure of the information submitted by a federal contractor, but that the Agency will follow “federal law” in releasing the information.

The OFCCP has longstanding cooperative agreements with the Equal Employment Opportunity Commission and Department of Justice, but these changes to the Scheduling Letter may signal a more aggressive approach to information sharing.

Canary Statue.flickrCC.MichaelSonnabend
"Gotta sing!"

As Cara Crotty noted last week, in an effort to comply with President Obama’s Fair Pay and Safe Workplaces Executive Order, the National Labor Relations Board recently announced that it will disclose information about unfair labor practice complaints against federal contractors “to a federal database, which will then be used by the federal agencies’ Labor Compliance Advisors to determine whether the company has serious, repeated, willful, or pervasive labor law violations and should be disqualified from doing business with the federal government.”

So don’t be surprised if you start getting knocks on your door from the entire government alphabet – the EEOC, the DOJ, the NLRB, you name it.

The latest version of the Scheduling Letter will be used for three years, through June 30, 2019.

The document notifies the federal contractor that (1) it has been selected for a compliance review by the OFCCP and (2) lists the items that need to be gathered by the company and submitted to the Agency for review. The OFCCP uses the information to determine whether the contractor is in compliance with the OFCCP’s regulations and to measure the effectiveness of the company’s affirmative action programs.

Image Credit: Photo of canary statue from flickr, Creative Commons license, by Michael Sonnabend.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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