Yesterday the Office of Federal Contract Compliance Programs (OFCCP) posted a Corporate Scheduling Announcement List (CSAL) in the OFCCP Freedom of Information Act (FOIA) Library with 3,500 establishments listed. This is the first time OFCCP has posted a CSAL in the FOIA Library and not mailed advance notice to individual contractor establishments. The CSAL identifies the type of review each of the listed contractors have been selected for—establishment reviews, Corporate Management Compliance Evaluation (CMCE) reviews, Functional Affirmative Action Program (FAAP) reviews, Section 503-focused reviews, and compliance checks.
As part of the CSAL posting, OFCCP disclosed how it populated its CSAL. According to OFCCP, the criteria included but was not limited to the following: (1) include no more than 15 establishments of any parent company in the entire scheduling list; (2) include no more than five establishments of the same company in any particular district office; (3) allocate no more than two CMCE reviews and three FAAP reviews to each district office; (4) focus approximately one-third of this scheduling list on industries that OFCCP determined as having the highest rates of discrimination findings, which includes agriculture, manufacturing, and wholesale trade industries.
The CSAL is the first to include Section 503-focused reviews as described in OFCCP's Focused Review Directive (DIR 2018-04) and Compliance Checks as outlined in OFCCP's Affirmative Action Program Verification Initiative Directive (DIR 2018-07). According to DIR 2018-04, OFCCP will conduct focused reviews of Executive Order (EO) 11246, Section 503 of the Rehabilitation Act of 1973, and the Vietnam Era Veterans Readjustment Assistance Act (VEVRAA) by going onsite and conducting a comprehensive review of the particular authority at issue. The directive explains that "[t]he review would include interviews with managers responsible for equal employment opportunity and Section 503 [EO 11246 or VEVRAA] compliance (such as the ADA coordinator) as well as employees affected by those policies. OFCCP would also seek to evaluate hiring and compensation data, as well as the handling of accommodation requests, to ensure that individuals with disabilities are not being discriminated against in employment."
Under DIR 2018-07, OFCCP announced it will develop a comprehensive program to verify that federal contractors are complying with Affirmative Action Plan (AAP) obligations on a yearly basis. The program will include: (1) development of a process whereby contractors would certify on a yearly basis compliance with AAP requirements; (2) inclusion of a criterion in the neutral scheduling methodology increasing the likelihood of compliance reviews for contractors that have not certified compliance with the AAP requirements; (3) compliance checks to verify contractor compliance with AAP requirements; (4) requesting proffer of the AAP by contractors when requesting extensions of time to provide support data in response to a scheduling letter; and (5) development of information technology to collect and facilitate review of AAPs provided by federal contractors.
The CSAL provides contractors a 45-day courtesy notice prior to sending OMB-approved audit scheduling letters. The OMB-approved audit scheduling letters give contractors 30 days to provide OFCCP with substantial information. Any contractor on the CSAL should consult legal counsel to ensure their AAP and related practices are audit-ready. And, while contractors who are not listed on the CSAL are undoubtedly pleased with their omission, note that OFCCP may still select contractors for audit at any time even without including them on the CSAL.