Revised Scheduling Letter Announced

OFCCP News and Updates

Revised Scheduling Letter Announced

On September 30, 2014, the Federal Registry released a notice stating the Office of Management and Budget’s (OMB) approval of the revised Scheduling Letter. The scheduling letter will include minor changes such as correction of legal citations and the change of language used to better reflect the regulatory structure of compliance evaluations.

The major changes of the scheduling letter to note include:

  • The OMB rejected the proposal of requiring contractors to submit employment transactions data by job group AND job title, instead it will revert to the 2008 Itemized Listing, allowing contractors to continue submitting their employment transactions data by either job group OR job title.
  • The submission of the employment transactions data will be by gender and individual race and ethnicity (five specified categories) instead of total minority and nonminority.
  • Instead of submitting annualized aggregate compensation data, contractors will submit employee level compensation data as of the date of the workforce analysis in their Affirmative Action Plan by job title, job group, and EEO-1 category.
  • The OFCCP encouraged the use of electronic submission of data in the 2008 scheduling letter, however, in the revised letter, contractors are required to submit their data electronically, given that it is maintain in an electronic format.

Stay tuned for more information as the OFCCP has not release the finalized revised Scheduling Letter.

Source: https://www.federalregister.gov/articles/2014/09/30/2014-23177/agency-information-collection-activities-announcement-of-omb-approval#page-58808

Fall CSAL Notifications

Many federal contractors are currently receiving pre-audit notifications at single establishments. We thought it would be helpful to remind contractors that a single site notification is not the only method for distributing notification of an audit or pending audit.

The OFCCP can notify contractors of an audit or pending audit through any of the following:

  • a CSAL to the corporate office,
  • a CSAL to the single establishment,
  • through a telephone call,
  • or by simply sending a Scheduling Letter

Pre-notification of an audit is not required by law and is a courtesy provided by the OFCCP. The potential for a “pop quiz” exists and federal contractors should be mindful of this.

To read more about the OFCCP directives regarding audit notifications, please click the link below:

“How is the CSAL different from a Scheduling Letter?
(source:  http://www.dol.gov/ofccp/regs/compliance/faqs/csalfaqs.htm#Q2)

The CSAL is not required by law. It is a courtesy notification to a company chief executive officer through which OFCCP provides:

  • a notice of a corporation’s contractor establishments selected to undergo a compliance evaluation during the next scheduling cycle; or
  • a notice of a corporation’s single establishment sent directly to the facility to be selected to undergo a compliance evaluation during the next scheduling cycle; and
  • an invitation to contractors to utilize the various compliance assistance resources and activities provided by OFCCP through its website and regional offices.

The Scheduling Letter is the OMB-approved letter sent to an establishment to start the evaluation process. The letter is used to:

  • notify a particular contractor establishment that it has been scheduled for a compliance evaluation; and
  • request submission of the contractor’s Affirmative Action Program(s) and the supporting data.”

Resources:

If you have received a CSAL or Scheduling Letter and need assistance, please contact Biddle Consulting Group at (800) 999-0438 or staff@biddle.com.

Does the OFCCP Have the Authority to Request AAP Data Collected After the Contractor Received the Scheduling Letter?

This shouldn’t be news to anyone, but OFCCP audits can last a long time. The question is, does the OFCCP have the authority to request AAP data collected after the contractor received the scheduling letter (i.e., data going forward). In its May, 2012 OFCCP v. Frito-Lay ruling, the Administrative Review Board says it does if the request for additional information is motivated by a deficiency.

OFCCP v. Frito-Lay – a brief overview

Frito-Lay received a Scheduling Letter from the OFCCP dated July 13, 2007, informing them that the OFCCP would be conducting a desk audit and requesting AAP data from 2006 and potentially 2007. Frito-Lay produced data for 2005, 2006, and 2007 giving the OFCCP more AAP data than was requested. One year later, OFCCP informed Frito-Lay that there was “statistically significant disparity” in the AAP data. To further investigate the disparity, OFCCP then requested additional AAP data from 2008 and 2009 as part of its continuing 2007 Desk Audit. Frito-Lay objected and refused to hand over the 2008 and 2009 data saying that it was beyond the scope of the Schedule Letter. OFCCP then initiated an enforcement action and requested a hearing to compel Frito-Lay to comply.

The Administrative Law Judge agreed with Frito-Lay and recommended dismissal of OFFCP’s complaint. The ALJ’s recommended decision focused on the nature of the desk audit with references to the OFCCP’s Federal Contract Compliance Manual (FCCM).

The case then went to the Administrative Review Board (ARB) for a final administrative order. Frito-Lay asserted that it showed good faith by initially providing more AAP data than was originally requested by OFCCP. Additionally, the company argued that the OFCCP’s own manual and procedures intend that desk audits are to be a quick and limited review of the contractor’s activities within the dates specified in the Scheduling Letter. Frito-Lay asserted that OFCCP does not have discretion to request AAP data beyond the dates specified in the Scheduling Letter even if OFCCP discovers evidence of a potential violation.

The ARB disagreed. Looking to Executive Order 11246 and citing several other relevant cases, the final ruling stated that “to enable OFCCP in its mission, the regulations empower it with discretion to conduct various types of compliance reviews .” Furthermore, the ARB reasoned that requesting the two additional years’ of statistical data is a common and reasonable practice in determining whether disparate impact has occurred. When it finds deficiencies, it may make reasonable efforts to secure compliance through conciliation and persuasion.” Since OFCCP was investigating a concern about a statistically significant disparity in hiring women, the request for additional data was consistent with its duty to ensure that Frito-Lay comply with Executive Order 11246.

What does this ruling mean to the Federal Contractor Community?

The cost of being a federal contractor continues to go up and the following are a few suggestions as to where those costs might come from:

  1. Legal and consulting expense required to assist contractors in pushing for administrative closure of their audit to limit the OFCCP’s ability to seek additional data when the audit is left open.
  2.  More procedural oversight of HR managers and AAP professionals as well as administrative responsibilities within their organization to accurately track employment data, complete their AAP in a timely manner and document action-oriented items within their AAP.
  3. Additional and more frequent analyses of data, throughout the AAP year, will now become more important for Contractors. Understanding that “snap-shot” data can vary throughout the year will mean that contractors will be compelled to analyze data at greater frequencies and identify patterns or practices that would elicit adverse impact.

Does this mean that the “ball” rests solely in the OFCCP s “court”? Not necessarily!

Here are a few questions, or situations, that the OFCCP will have to address.

  1.  The OFCCP’s request for additional data also opens the door for the contractor to submit additional data while the audit is open.
  2.  If the OFCCP requests additional data only to find out that the additional data resolved the concerns at-issue, will the OFCCP close the audit without assigning conciliation or applying other means of persuasion?

It’s your turn…

As always, if you have any questions regarding this post, please let us know.
If we can assist you in your AAP process or with an upcoming OFCCP Audit, we’re here to help.

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