Scheduling Letters Approved

The OFCCP recently received approval of its new scheduling letters which will require federal contractors and subcontractors to submit some additional information when they are selected for a compliance review.  The new letters include mostly non-substantive changes and more precise notices to contractors, however most of the significant changes requested by OFCCP in June 2019 were not adopted.

Below is a breakdown of the changes:

Disability (Section 503) & Veteran (VEVRAA) Focused Reviews

Veteran Focused Reviews are generally all new.  OFCCP announced a CSAL for VEVRAA Focused Reviews in November 2019 but did not have an approved scheduling letter to initiate them until now.  The copies the obligations found in the disability focused review scheduling letter with few changes.

The previous obligation for a contractor to submit the date of its most recent assessment of personnel and the date for its next scheduled assessment was replaced with only providing a “description of the review.”

Additionally, the new letter requires contractors provide “the schedule for the review” of its assessment of physical and mental qualifications instead of providing the date of the most recent assessment and the date for the next assessment.

Furthermore, contractors “must” submit all requested information electronically if the contractor maintains the information electronically.  This is a unique requirement pertaining to the focused review letters.

OFCCP requested that contractors provide employee and applicant-level data on the disability or veteran self-identification for the previous Section 503 AAP year.  This request was not approved by OMB.The denial of this request by OMB reiterates the limited scope of focused reviews and further confirms these audits only require a subset of the information provided in a full establishment review.

OFCCP’s request that contractors submit compensation data in a focused review was also denied by OMB.

Compliance Checks

There were no major changes to the compliance check letter.

There is a potential OFCCP citation error regarding the authority requiring contractors to submit prior year’s AAP results during a compliance check.  The previous letter cited 41 CFR § 60-1.12(b) (Record retention).  The new letter cites 41 CFR §60-2.1(b) (Who must develop affirmative action programs).  We expect OFFCP to request another revision from OMB to revise the citation to cite 41 CFR § 60-10.1(b) (Contents of affirmative action programs).

OFCCP’s request that contractors submit written AAPs prepared in accordance with Executive Order 11246, Section 503 and VEVRAA was not approved by OMB.

Establishment Reviews

OMB denied OFCCP’s request that contractors provide a specially created list of subcontractor names and locations for the three most recent subcontracts awarded.

OMB also removed the potential obligation requiring contractors to identify race/gender demographics for the internal pools from which they select internal promotions.  OFCCP will likely continue its evaluation of promotions in an audit by comparing the promotion data against previous year workforce demographics.  This does raise questions about what the future OFCCP scheduling letter on promotions focused reviews will include.

In conclusion, although changes do exist, the new scheduling letters do not include the most significant changes requested by OFCCP.  This is likely to be welcome news to the Federal contractor community.