When the Office of Federal Contract Compliance Programs (OFCCP) published its notice of proposed changes to the Scheduling Letter and Itemized Listing over a year ago (May 2011), the reaction from the contractor community was clear; the reality of the burden and risks involved with the proposed changes were far greater than the estimates made by the OFCCP. That reaction and legitimate employer confidentiality concern were disregarded by the OFCCP as the Office of Management and Budget received the revision request from the OFCCP in September of 2011 with little to no change.
To date there has been no conclusion on this matter as the expiration date of the previously approved Scheduling Letter and Itemized Listing is extended on a monthly basis.
It the meantime compliance evaluations have become increasingly detailed and burdensome. As one legal analyst recently wrote, "OFCCP is taking the position it can get anything it wishes at Desk Audit upon showing a contractor has failed a test for an "indicator", even if most contractors fail the indicator test OFCCP designs." (John Fox, May 2012, The Frito-Lay ARB Decision: Trouble Ahead for Contractors).
This statement brings to mind the rescission of the Voluntary Guidelines for Self-Evaluation of Pay Practices by the OFCCP. This action / notice included this statement in the Federal Register:
"OFCCP believes it is unnecessary to issue new Federal Register notices articulating its interpretations of Title VII principles related to compensation discrimination"
Adding these things together with the recent Frito Lay decision itself gives the impression that the OFCCP does not need a revised Scheduling Letter to obtain as much information as a contractor is willing to provide during the Desk Audit. The OFCCP does, in fact, seem to be receiving volumes of data simply by asking: perhaps due to uncertainty in the contractor community as to what the agency is legally entitled to during a Desk Audit; and perhaps in an attempt to stave off an on-site meeting - something many contractors avoid at all costs.
While the revisions to the Scheduling Letter include administrative issues such as leave policies and accommodations, one of the major differences would be the vast amount of compensation data required to be submitted based upon a February 1 snapshot date (reportedly due to January 31 W-2 filing requirements) in electronic format. But while there was a unified uproar against such a year ago, one-by-one contractors are acquiescing to the OFCCP's data requests as a matter of course.
The current practice of providing additional data as requested may require more investigative effort on the part of Compliance Officers and perhaps longer audits for contractors; however, it does seem a more appropriate course to follow as it also provides contractors the opportunity to explain their internal system(s) and how they operate in a nondiscriminatory fashion. This is something annual data alone simply cannot provide.
Do we really need a new Scheduling Letter and Itemized Listing as the agency appears to receive the information requested once they establish the legal nexus? Or is it possible to carry-on working in a collegial fashion - each side understanding the other has a job to do and respecting the other's time, effort and responsibilities. Only time will tell...
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