The Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has submitted to the Office of Management and Budget (OMB) for review revised forms it uses to collect information in connection with non-construction supply and service contractor compliance reviews. Specifically, the agency intends to amend its “Scheduling Letter” (pdf) that the OFCCP sends to federal contractors selected for compliance review. This letter notifies the contractor that it will be audited and informs the contractor that it will need to provide certain information in connection with the evaluation. The changes to the actual scheduling letter, for the most part, are cosmetic. OFCCP ceased reviewing I-9 forms as part of its routine audits, and the new scheduling letter reflects that change. The scheduling letter is issued along with the standard form known as the “Itemized Listing,” (pdf) which sets forth the specific information and documentation that the contractor is required to produce, in addition to the actual affirmative action plans themselves. The OFCCP intends to make substantial changes to the Itemized Listing, however.

The OFCCP first announced the proposed changes in May 2011, which promptly came under fire from various contractors, industry organizations and associations, as the amendments would significantly impact how federal contractors maintain their records and respond to audit scheduling letters. After reviewing comments submitted in response to this announcement, the OFCCP has made some alterations to these documents, although much remains substantively unchanged from the OFCCP’s initial proposed revisions.

As discussed in the OFCCP’s Supporting Statement (pdf) submitted to the OMB, the majority of comments made in response to the proposed changes focused on the request in the Itemized Listing for compensation data, contractor employment activity, and leave policies, as well as “anticipated adjustments that contractors may need to make to their human resources information systems.” By and large, the OFCCP determined that “the benefits associated with receiving improved data from contractors and the net reduction of 1.34 hours in the 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.’” The agency also claimed that “societal benefits result from finalizing the proposed changes to the Scheduling Letter and Itemized Listing.”

The OFCCP did, however, take certain comments into consideration, and made a few minor adjustments to the aforementioned documents. These changes are as follows:

  • Leave Policy. Item 8 on the revised Itemized Listing seeks copies of employment leave policies including, but not limited to, policies related to implementing the Family Medical Leave Act (FMLA), pregnancy leave, and accommodations for religious observances and practices. In the absence of these policies, the OFCCP initially proposed that it would accept a contractor’s employee handbook or manual. In response to comments that this would be unduly burdensome, the OFCCP has revised Item 8 to allow contractors to submit only the relevant pages of the manual or handbook (including the front cover of the manual or handbook, the Table of Contents, and those pages with the leave policies) in lieu of the entire manual/handbook itself.
  • Employment Activity. Despite several comments informing the OFCCP that the proposed changes to Item 11 in the listing – which seeks information on contractor employment activity such as applicants, hires, promotions, and terminations by job group and by job title, as well as by sex and each of the five racial/ethnic categories – are extremely burdensome as well as unnecessary, the agency is sticking with much of its initial proposed revisions. The only change the agency has agreed to make relates to its request that the information sought in Item 11(a) through 11(c) in the Itemized Listing be provided for “at least the first six months of the current [Affirmative Action Plan] year.” The OFCCP clarifies that if the contractor is six months or more into its current AAP year when it receives the itemized listing, it must provide the information only for the first six months of the current AAP year.
  • Compensation Data. The OFCCP has made only minor changes to its initial revisions to Item 12 on the Listing, which seeks compensation data for all employees. The agency has revised this item to include a disclosure/confidentiality statement in light of privacy concerns. In addition, the OFCCP is clarifying that it would prefer, but will not mandate, that compensation information be provided in a single electronic file.

Comments on this new round of changes must be submitted by October 28, 2011, and submitted to: Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for the Department of Labor, Office of Federal Contract Compliance Programs (OFCCP), Office of Management and Budget, Room 10235, Washington, DC 20503.