On July 1, 2016, the Office of Federal Contract Compliance Programs (OFCCP) announced that the Office of Management and Budget (OMB) had approved a new version of OFCCP’s Scheduling Letter and Itemized Listing. Such forms are the documents OFCCP sends to federal contractors and subcontractors when initiating a “review” (i.e., audit) of a contractor’s compliance with Executive Order 11246, Section 503 of the Rehabilitation Act of 1973, and the Vietnam Era Veterans Readjustment Assistance Act of 1974.
When Will OFCCP Begin Using the New Forms?
OFCCP began using the revised Scheduling Letter and Itemized Listing on July 1, 2016 and will continue using it for three years through June 30, 2019.
What’s Changed With the New Forms?
Unlike the 2014 revisions to the Scheduling Letter and Itemized Listing (which significantly expanded the information requested as part of a compliance review), the newly approved forms attempt to provide “clarification” without making substantive changes. Specifically, according to OFCCP, the edits were made to “ensure contractors understand the information being requested and to strengthen the agency’s assurances of confidentiality for the information provided.”
While the updated forms are slightly longer than the prior versions (eight pages instead of six), the OFCCP’s compliance review practices and the information initially requested remain the same. Changes that have been made include the following:
- The updated letter replaces the sentence “[r]est assured that OFCCP considers the information you provide in response to this Scheduling Letter as sensitive and confidential” with a notice that:
- “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 Department of Labor] DOL, as well as with other federal civil rights enforcement agencies with which we have information sharing agreements.”
- The updated letter further clarifies that, while “the public may seek disclosure” of the information provided, “[u]nder 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” in responding to such requests.
- The updated letter substitutes the phrase “compliance evaluation” with “compliance review.”
- The updated letter cautions that the OFCCP will notify the DOL’s Veterans’ Employment and Training Service if it determines that the contractor has not reported its hiring and employment of protected veterans via the required annual VETS-4212 filing.
- The updated letter breaks out OFCCP’s request to turn over the contractor’s veteran affirmative action plan (AAP) and disability AAP into two separate requests.
- Request No. 17 in the updated itemized listing replaces the requirement that a contractor who has missed placement goals with respect to minorities or women must describe “the specific good faith efforts made to achieve them” with language requiring a description of “the specific good faith efforts made to remove identified barriers, expand equal employment opportunity, and produce measurable results.”
- Request No. 18 in the updated itemized listing breaks out the request for applicant and hire data into separate requests.
- Footnote 10 in the updated itemized listing clarifies that, separate from the race and ethnic categories adopted by OFCCP, contractors “also have the option of submitting the requested data using the race and ethnic categories on the EEO-1 survey.”
Where Can I Learn More?
To review the new Scheduling Letter and Itemized Listing or to consult the OFCCP’s guidance regarding the forms, please follow the links below:
All federal contractors and subcontractors are wise to (a) review the new compliance review “kick-off” forms, and (b) evaluate their ability to provide the requested information promptly (i.e., within 30 days of receiving a notice) if unfortunate enough to be audited by OFCCP.