As we previously reported, OFCCP finally received approval of its new scheduling letters – and as a result federal contractors and subcontractors will be required to submit some additional information when selected for a Department of Labor compliance review. So, what’s new? As it turns out, not much. Most of the most significant changes in the OFCCP’s requested scheduling letters were not adopted.
We’ve scoured the new letters and note the following differences from OFCCP’s proposals in June 2019. There are non-substantive changes and more precise notices to contractors, which we are not noting here.
Disability (Section 503) & Veteran (VEVRAA) Focused Reviews
- Veteran Focused Reviews, Generally. It’s all new for Veteran focused reviews. While OFCCP announced a CSAL list for veteran focused reviews in November 2019, there hasn’t been an approved scheduling letter to initiate them until now. Notably, the veteran focused review letter mirrors the obligations from the disability focused review scheduling letter.
- Assessment of Personnel Process. The prior obligation to submit the date the contractor performed its most recent assessment of personnel and the date of its next scheduled assessment has been replaced with a mere “description of the review.”
- Assessment of Physical and Mental Qualifications. Instead of providing the date of the most recent assessment of the physical and mental qualifications and the date for the next assessment, the new letter requires contractors provide “the schedule for the review.”
- Electronic Submission of Data. The new focused scheduling letters state that contractors “must” submit any of the requested information in electronic format if the contractor maintains the information electronically. This requirement is unique to the focused review letters.
What did OMB remove?
- Employee-Level Self-Identification Data. OMB did not approve the OFCCP’s request that contractors submit applicant and employee level data on the disability or veteran self-identification, respectively, covering the immediately preceding Section 503 AAP year. The Agency’s proposed letters would have required that contractors provide a unique identifier “such that OFCCP can match self-identification information to applicants and employees.” The removal of this more detailed employee and applicant data reinforces the limited scope of focused reviews and confirms that these audits require only a subset of the information required in a full establishment review.
- Compensation Data. OMB did not approve the OFCCP’s request that contractors submit compensation data in a focused review – either at the employee-level or in the aggregate.
- Nothing, really. The prior compliance check letters required: (a) AAP results for the preceding year; (b); Examples of job advertisements, including listings with state employment services; and (c) Examples of accommodations made for persons with disabilities. These are the same requirements in the new version.
- Potential OFCCP Citation Error. This one’s a bit technical– sorry in advance. The prior compliance check letter cited 41 CFR § 60-1.12(b) (Record retention) as the authority for the requirement that contractors submit the prior year’s AAP results during a compliance check. But it cited 41 CFR §§ 60-300.44 and 60-741.44 (Required Contents of affirmative action programs) for the same obligation regarding veterans and individuals with a disability. The new letter cites 41 CFR §§ 60-2.1(b) (Who must develop affirmative action programs) for the obligation under the Executive Order, while leaving the veteran and disability cites unchanged. We suspect the Agency intended to update the Executive Order cite to reference 41 CFR §§ 60-2.10(b) (Contents of affirmative action programs) and anticipate that another request to OMB to revise this citation is likely.
What did OMB remove?
- Submissions of Complete AAPs. OMB did not approve OFCCP’s request that contractors submit its written AAPs prepared under Executive Order 11246 (race/ethnicity and sex), Section 503 (disability), and VEVRAA (veterans).
- Assessment of Personnel Process. As in the focused review letters, the obligation to submit the date the contractor performed its most recent assessment of personnel and the date of its next scheduled assessment has been replaced with a mere “description of the review.”
- Assessment of Physical and Mental Qualifications. Here too, the obligation to provide the date of the most recent assessment of the physical and mental qualifications and the date for the next assessment has been replaced by “the schedule for the review.”
What did OMB remove?
- Subcontractor Identification. OMB rejected OFCCP’s request that contractors submit a specially created list of the subcontractor names and locations for the three most recently awarded subcontracts.
- Internal Promotions Pools. OMB removed the potential obligation that contractors identify the race and gender demographics for the internal pools from which internal promotions were selected from the final letter. It is likely that OFCCP will continue to begin its evaluation of promotion decisions in an audit by comparing the promotion decisions against the prior year workforce demographics. This decision, however, raises an interesting question regarding what OFCCP’s future scheduling letter on promotions focused reviews will ultimately include.
In sum, the most significant changes were not incorporated in the new scheduling letters – but changes do exist. For many employers, this will likely come as a relief.
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