You are officially on notice—the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) is going to share your data with other federal agencies. What data, you ask? The OFCCP annually selects numerous federal contractors to evaluate their compliance with affirmative action regulations. It gets the data by sending a Scheduling Letter and Itemized Listing to federal contractors and subcontractors to initiate an audit of compliance with Executive Order 11246, Section 503 of the Rehabilitation Act of 1973, and the Vietnam Era Veterans Readjustment Assistance Act of 1974.
The Scheduling Letter starts the evaluation process by notifying the contractor it has been scheduled for a compliance evaluation and requesting submission of its affirmative action programs and supporting data. The Itemized Listing, which is used with the Scheduling Letter, identifies the documents and information that government contractors must provide during a compliance evaluation.
The OFCCP recently announced that the Office of Management and Budget (OMB) has renewed the Scheduling Letter and Itemized Listing for three years. The OFCCP began using revised Scheduling Letter and Itemized Listing documents to initiate compliance evaluations on July 1, 2016; it last released a revised Scheduling Letter and Itemized Listing in October of 2014.
The important thing to know about the revised Scheduling Letter and Itemized Listing is the change in the confidentiality of the collected data. The previous Scheduling Letter assured contractors that information they provided in response to a Scheduling Letter would be treated as “sensitive and confidential,” and disclosed only as required by the Freedom of Information Act. No more—the revised Letter alerts contractors that the OFCCP may share information with other enforcement agencies:
“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 U.S. Department of Labor], as well as other federal civil rights enforcement agencies with which we have information sharing agreements.”
Although the OFCCP has existing cooperative agreements with the Equal Employment Opportunity Commission and Department of Justice, these changes to the Scheduling Letter should alert contractors that more frequent information sharing may be in the works. As well, the timing of this revision seems more than coincidental given the National Labor Relations Board’s recent announcement that it would buttress federal contractor compliance under the Fair Pay and Safe Workplaces Executive Order by requiring employers to report information related to all unfair labor practice complaints filed on or after July 1, 2016.