- Several hundred supply and service federal contractors are now on notice of upcoming bias audits by the Office of Federal Contract Compliance Programs. On May 20, the OFCCP issued a new scheduling list, known as the Corporate Scheduling Announcement List, which identifies 400 businesses selected for the audit.
- Typically, after the CSAL is published, the OFCCP issues a "scheduling letter." The audit doesn't start until a contractor receives the letter. However, in previous years, the OFCCP delayed issuing the letters for 45 days after posting the CSAL. It's no longer doing this, according to a March 31 directive. Instead, the letters will start to go out immediately. The OFCCP also eliminated the automatic 30-day extension for contractors to submit key compensation, employment and other support data.
- The scheduling list is based on a methodology developed from "neutral criteria," according to the OFCCP. This year, the OFCCP downloaded information on federal contracts valued over $50,000 from the USAspending database, the agency explained. It then focused on industries that experienced employment growth during the pandemic, including industries expected to receive significant federal investment for infrastructure and economic recovery. It also looked at other factors, including how an industry's representation of demographic groups in EEO-1 categories differs from that of the local labor market.
Federal contractors are required to comply with equal employment opportunity laws, post notices of employee rights and provide equal employment opportunities through affirmative action programs (AAPs). The OFCCP, a civil rights arm of the U.S. Department of Labor, is tasked with enforcing these obligations. As part of its enforcement duties, the OFCCP audits contractors' records and practices to make sure they're in compliance.
The OFCCP conducts three kinds of audits: compliance reviews, corporate management compliance evaluations (CMCEs) and functional affirmative action program (FAAP) reviews.
In a compliance review, the OFCCP determines whether the contractor has maintained records consistent with three EEO laws: Executive Order 11246's general ban on employment discrimination; Section 503 of the Rehabilitation Act, which, like the Americans with Disabilities Act, prohibits disability discrimination and requires reasonable accommodations; and the Vietnam Era Veterans Readjustment Assistance Act (VEVRAA), which prohibits discrimination based on a veteran's status. The review also looks at job ads, examples of reasonable accommodations and the results of a contractor's AAP under each of the above laws.
A CMCE includes all of a standard compliance review but focuses on the contractor's corporate headquarters. In a CMCE, compliance officers review components of the employment process that affect advancement or promotion into middle- and senior-level positions.
Similarly, an FAAP review includes all aspects of a standard compliance review, but it also looks at whether the contractor has complied with the FAAP's detailed requirements. FAAPs, or functional AAPs, are developed around a particular business function, such as a sales division or an R&D unit. They're an alternative to AAPs, which are developed around the contractor's business establishment. Contractors with facilities in multiple states or regions often find that FAAPs better align with their operations.
This year's audit process is likely to be more burdensome and potentially more intrusive than in the past, attorneys from the Littler law firm explained in an April blog.
The attorneys pointed to a number of changes the OFCCP announced in its March 31 directive. For example, by eliminating the automatic 30-day extension for submitting records and the 45-day extension for issuing the selection letters, the "OFCCP appears to take the position that contractors should always have on hand all of the information required by the agency's scheduling letter and, therefore, should be able to provide a satisfactory response immediately to surprise demands for information," the attorneys asserted.
The OFCCP said it eliminated the automatic delays because they run counter to "timely submission of required information." But OFCCP's rules don't require contractors to maintain records in the form requested by the scheduling letter, and an employer's need for more time to collect the additional data "is not at all an indication of non-compliance," the blog states.
The directive also appears to imply that requests for unredacted contact information, such as telephone numbers, mailing addresses and social security numbers, will be more common, the attorneys warned.