Revisions to OFCCP Scheduling Letters Have Been Approved

Recently, the Office of Management and Budget (OMB) approved updated scheduling letters for use by the Office of Federal Contract Compliance Programs (OFCCP) to initiate Supply & Service and Construction Contractor compliance evaluations.

On the OFCCP's website, copies of the approved letters have been posted for Compliance Checks, Section 503 Focused Reviews as well as VEVRAA Focused Reviews. This is the first time the scheduling letter for VEVRAA Focused reviews has been released and the format appears to resemble that of the Section 503 letter.

For the most part, the updates to existing letters appear to simplify language without adding additional components or requirements. All of the approved letters are effectively immediately with an expiration date of April 30, 2023.

OFCCP Issues Corporate Scheduling Announcement Letters

Earlier this month, the OFCCP began issuing CSAL letters directly to contractor establishments. They are providing this courtesy letter alerting contractors of upcoming OFCCP audit Scheduling Letters (which actually begin an audit) that they "may" be selected for an audit. In our experience, at least 90% of the time, organizations that receive this "heads up" letter will typically be scheduled for an audit within the following few weeks to up to six months or more.

With this round of CSALs, the OFCCP has further reduced the number of audits it seeks to annually undertake to perhaps only 1300 per year, down from the usual 4,300+. The OFCCP has undertaken approximately 500 already started in the first 5 months of this Fiscal Year 2017 and 800 anticipated in the last 7 months of this Fiscal Year.

To spread work more evenly across different OFCCP District Offices, OFCCP had recently begun to have its District Offices audit not only beyond their normal geographical District boundaries, but also across Regional Office lines (i.e. the Portland OFCCP Office may audit in Florida or the Jackson, Mississippi OFCCP District Office may audit in the Mid-west). This round of CSALs continues and expands that "out-of-District" audit approach.

OFCCP Scheduling Letter Renewed

OFCCP’s Scheduling Letter and Itemized Listing have been renewed for three years by the Office of Management and Budget (OMB). The OMB authorization expires on June 30, 2019. Starting on July 1, 2016, OFCCP will begin using the renewed letter to initiate supply and service compliance evaluations.

OFCCP made clarifying edits to the Scheduling Letter and Itemized Listing (OMB Control Number 1250-0003) to ensure contractors understand the information being requested and to strengthen the agency’s assurances of confidentiality for the information provided. Additionally, OFCCP has included language in the renewed Scheduling Letter that provides a more complete description of its investigatory and enforcement processes.

The renewed Scheduling Letter and Itemized Listing can be found here.  For more information about the Scheduling Letter and Itemized Listing, please visit OFCCP’s FAQ Web page, or call THOMAS HOUSTON at 800.330.9000.

Are the Changes to the Scheduling Letter A Formality?

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...

For information on our Affirmative Action and Compliance Evaluation Preparation and Representation Services, please call (800) 330-9000, or click here to schedule a convenient time to receive a call from a member of our Sales Team.

This information is intended to be educational and should not be considered legal advice on any specific matter.

The OFCCP's Early Warning System - Did You Get One?

Corporate Scheduling Announcement Letters (CSAL), dated June 29th, have been sent by the Office of Federal Contract Compliance Programs (OFCCP).

The OFCCP has developed the CSAL to keep federal contractors informed in the event of a potential compliance evaluation. If there is an actual compliance evaluation, federal contractors will receive a scheduling letter, with detailed submission instructions on what to submit for evaluation within a 30 day timeframe.

The CSAL, generally addressed to the Chief Executive Officer, is notification to a corporation that one or more of its establishments are on the list of contractor establishments selected to undergo a compliance evaluation during the scheduling cycle. The CSAL should be considered an "early warning" of a compliance evaluation at ANY establishment within your company. If your company has received a CSAL, it is critical that preparations begin now.

To gain more information on what is involved in preparing for a Compliance Evaluation, visit our Learning Library and select

"Understanding Compliance Evaluations"

You will learn what to do when an actual Scheduling Letter is received, the various types of compliance evaluations, best practices in preparation for your audit and the most frequently cited violations by the OFCCP.

For more information on our COMPLIANCE EVALUATION preparation and representation services or a better understanding of what you should do if your company received a CSAL, please call (800) 330-9000, or click here to schedule a convenient time to receive a call from a member of our Sales Team.

See a sample CSAL

This information is intended to be educational and should not be considered legal advice on any specific matter.

OMB Requesting Comments on OFCCP Scheduling Letter Changes

*Comments Needed by 10/28/11

The Office of Management and Budget is requesting comments with regard to the OFCCP request for changes to the Scheduling Letter, which is used to schedule Federal contractors for Compliance evaluations.  Also included in this request are significant changes to the Itemized Listing that accompanies the Scheduling Letter.   The general feeling already expressed during the OFCCP comment period is that the OFCCP HAS SIGNIFICANTLY UNDERESTIMATED THE BURDEN THAT THE REQUESTED CHANGES WILL PLACE ON CONTRACTORS.

Despite the majority opinion of those who commented, the OFCCP made only three minor modifications (outlined below) to the original notice of change.  The request for approval submitted by the OFCCP to the OMB summarizes the public comments received and states:  “OFCCP seriously considered the comments we received and the calculation of burden that our proposed changes would create for contractors.  After doing so, we determined that the benefits associated with receiving improved data from contractors and the net reduction of 1.34 hours in total burden hours spent by contractors in supplying OFCCP with that data are the best, most innovative and least burdensome tasks for achieving regulatory ends.” Note:  The burden hours per contractor for the current scheduling letter is 28.35, the initial request for change estimated the burden hours to be reduced to 26.01,  the recent modifications have increased the estimated burden hours per contractor to 27.01.

MODIFICATIONS MADE

The modifications to the request do not reflect the serious consideration of these comments asserted by the OFCCP.  Three minor modifications, none responsive to the comments related to major changes imposing the largest burden, were made to the proposed changes to the Itemized Listing:

1.       Item 8:  Contractor Employment Leave Policies:

a.         providing the option to submit employee handbook / manual or only relevant pages (i.e. TOC and pages with leave policies); and

b.       clarifying the scope of leave policies requested: “Submission of employment leave policies including,  but not limited to, sick leave, medical leave, personal leave, leave for pregnancy, leave for pregnancy related conditions, leave for religious holidays and observances, Family Medical Leave and other leaves of absence; and policies on accommodations for religious holidays and observances.”

2.       Item 11:  Employment Activity (submission by Job Group AND Job Title, individual race / ethnic categories and ‘pool of candidates’):  The only change to this item was an increase in burden from 1 to 2 hours. 

3.       Item 13:  Supporting Documents:  OFCCP is changing the proposed request that contractors submit their VETS-100 and/or 100A forms from the last three years to requesting that they submit such forms for two years (the current year and previous year).

Click here to review the Supporting Statement and assess the impact of this CRITICAL proposed regulation.

For affirmative action services offered by THOMAS HOUSTON associates, inc., call 1-800-330-9000 or click here to schedule a convenient time to receive a call from one of our Affirmative Action Consultants. 

PREVIOUS COMMENTS SUBMITTED TO THE OFCCP

Included in our blog of July 19 is a sampling of the public comments submitted to the OFCCP as well as a link to view all comments posted.  The public comments contain sound detailed arguments and overwhelmingly encourage the OFCCP to revise or reconsider completely the proposed changes. 

*SUBMIT COMMENTS TO:

·         OIRA_submission@omb.eop.gov; or

·         202-395-6881 (Fax); or

·         202-395-6929 (Phone); or

Office of Information and Regulatory Affairs, ATTENTION: OMB Desk Officer for the Department of Labor, OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS, Office of Management and Budget, Room 10235, Washington, DC 20503