OFCCP has announced finalization of the Agency’s “updated” Supply and Service Scheduling Letter and Itemized Listing. As a reminder, OFCCP initially proposed significant changes to the letter, which initiates a compliance review for scheduled contractors, in 2022. Following significant public comment, OFCCP published a slightly revised proposed letter earlier this year.

Notably, the Itemized Listing released today still includes a requirement to submit:

Item 21. Identify and provide information and documentation of policies, practices, or systems used to recruit, screen, and hire, including the use of artificial intelligence, algorithms, automated systems or other technology-based selection procedures.

Item 22. Documentation that the contractor has satisfied its obligation to evaluate its “compensation system(s) to determine whether there are gender-, race-, or ethnicity-based disparities,” as part of the contractor’s “in-depth analyses of its total employment process” required by 41 CFR 60-2.17(b)(3). Include documentation that demonstrates at least the following:

  1. When the compensation analysis was completed;
  2. The number of employees the compensation analysis included and the number and categories of employees the compensation analysis excluded;
  3. Which forms of compensation were analyzed and, where applicable, how the different forms of compensation were separated or combined for analysis (e.g., base pay alone, base pay combined with bonuses, etc.);
  4. That compensation was analyzed by gender, race, and ethnicity;

Interestingly, the notice indicates the updated letter applies to any “supply and service compliance evaluations scheduled on or after August 24, 2023, the day before the Agency announced the release of the updated letter.

To the extent the updated scheduling letter asks contractors to submit information not previously requested, the immediate implementation of the letter gives contractors little time to comply. This, coupled with the Agency’s directive regarding limited approval of extension requests seemingly puts contractors between a rock and a hard place. Hopefully, the Agency recognizes this and will deem timing of the release of the updated audit letter an “extraordinary” circumstance justifying additional time to respond.

The Agency directs contractors to its OFCCP’s Frequently Asked Questions for further guidance and assistance with questions on the new letter.

Stay tuned for additional thoughts and insights as we continue to evaluate and monitor this development.

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Photo of Laura A. Mitchell Laura A. Mitchell

As co-leader of the firm’s ESG group, Laura Mitchell partners with her clients to evaluate, set, achieve and monitor their organizational culture and human capital goals. She focuses her practice on data analytics, including pay equity and other employee analytics, working side-by-side with…

As co-leader of the firm’s ESG group, Laura Mitchell partners with her clients to evaluate, set, achieve and monitor their organizational culture and human capital goals. She focuses her practice on data analytics, including pay equity and other employee analytics, working side-by-side with employers to build programs that benefit employees and create a stable, high-functioning workplace. Understanding that an inclusive, values-based culture provides a crucial competitive advantage in the modern workplace, Laura enjoys counseling companies on the development of proactive and equitable pay and diversity practices.

In Laura’s version of the reimagined workplace, attention to human capital issues, especially DEI and pay equity, would be the rule rather than the exception nationwide and she works with companies across all industries—both new and well-established multi-national organizations of all sizes—to realize this vision for her clients’ ongoing success. She helps clients understand all issues across the spectrum of their journey, helping to establish regular analyses as well as counseling organizations on implementation and compliance obligations, where applicable. Committed to putting her clients’ organizational goals first and foremost, Laura views herself as an extension of her clients’ team, responsible for providing proactive guidance and engaging in transparent, ongoing communication.

Laura also represents companies in OFCCP matters, preparing for and defending OFCCP audits, and counseling employers on issues stemming from OFCCP regulations. She personally oversees the development of hundreds of Affirmative Action Plans for clients each year and is intimately involved in the defense of OFCCP audits. Her approach to compliance is one of facilitation and conciliation while simultaneously advocating in the best interests of her clients.