OFCCP Produces Final Version of Revised Scheduling Letter and Itemized Listing

When a federal contractor is formally selected for an affirmative action compliance review by the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP), OFCCP notifies the contractor through a Scheduling Letter that is sent to the facility that will be evaluated. The Scheduling Letter includes an Itemized Listing that requests various statistical reports and other pieces of information. Contractors are required to submit all of the data requested in the Itemized Listing to OFCCP within 30 days of receipt of the Scheduling Letter.

On May 12, 2011, OFCCP published proposed major changes to the Scheduling Letter and Itemized Listing. After receiving comments from various members of the public, OFCCP produced what it anticipates will be the final version of the Scheduling Letter and Itemized Listing on September 28, 2011. The final versions of the revised Scheduling Letter and Itemized Listing are basically the same as the proposed versions. The changes to the Itemized Listing are dramatic and wide-ranging. While this is not an exhaustive list, under the revised Itemized Listing, contractors would be required to provide:

  • • Specific demographic information on applicants, hires, promotions, and terminations, including data on minority sub-groups. Contractors would be required to provide data by job group AND job title.
  • • Specific demographic data for each job group and job title on the pools of employees considered for promotional opportunities. This type of analysis would in essence parallel the current analysis done for applicants and hires.
  • • Specific demographic data for each job group and job title on the total number of employees who were part of the pool of employees considered for termination
  • • Specific and comprehensive data on employees that would be used for compensation analyses. Employers would be required to provide base salary, hours worked, gender, race/ethnicity, hire date, job title, EEO-1 category, and job group for each employee. This data would be submitted in an electronic format to OFCCP. Contractors would be allowed to provide information on other factors that may influence compensation such as past experience, location, grade, and education. Contractors would be required to provide data on ALL employees, including contract, per diem, and temporary employees. The data to be used for compensation analyses would involve employees in place in the relevant unit as of February 1, regardless of the start date of the AAP. Thus, the items to be used for the compensation analysis might cover a very different set of employees than the employees in the workforce analysis and other statistical reports in the AAP.
  • • Employment leave policies, including policies concerning Family and Medical Leave Act and maternity leave
  • • Policies on accommodation for religious observances and practices
  • • Policies on accommodation for persons with disabilities and information on specific accommodations made for persons with disabilities
  • • Two years of VETS-100 and/or VETS-100A reports

OFCCP is no longer taking comments on its revised Scheduling Letter and Itemized Listing, but the Office of Management and Budget (OMB) will be accepting comments through October 28, 2011 on the burden associated with the changes to these documents. OMB is ONLY interested in evaluating whether OFCCP has properly recognized the additional burden that the changes will represent; OMB is not looking for additional comments on the substantive issues associated with the revisions.

While it is unlikely that OMB will deny OFCCP’s request to modify the Scheduling Letter and Itemized Listing, it is not clear when the new Scheduling Letter and Itemized Listing will go into effect. The current Scheduling Letter has expired and there are limits on OFCCP’s continued use of this document. OMB has already reviewed these documents on a number of occasions and thus the OMB review may go quickly.

Companies that are subject to OFCCP compliance reviews need to consider what they will do to provide the additional information requested in the revised Itemized Listing. The changes to the Scheduling Letter and Itemized Listing will clearly result in increased time in collecting and recording information and increased time and cost in the production of affirmative action plans.

Did You Know … that the contractor community has one last opportunity to limit the changes to the Scheduling Letter and Itemized Listing? Companies can submit comments to OMB at OIRA_submission@omb.eop.gov. Any comments should focus entirely on the number of hours and level of burden associated with the changes to these documents. These comments will become part of a permanent record that may be important during any future litigation regarding the revised Scheduling Letter and Itemized Listing.

For more information on OFCCP’s revised scheduling letter and itemized listing, please contact me at wosterndorf@hranalytical.com. You can also visit the Documents section of the HR Analytical Services website at www.hranalytical.com to see copies of the revised scheduling letter and itemized listing.