Berkshire submits comments to OFCCP for proposed Scheduling Letter changes

Last week, Berkshire submitted comments on OFCCP’s proposed changes to the Supply & Service Sche...

Last week, Berkshire submitted comments on OFCCP’s proposed changes to the Supply & Service Scheduling Letter and Itemized Listing (Scheduling Letter). 

As we reported, OFCCP proposed sweeping changes to its Scheduling Letter in November. The proposed changes are significant and far-reaching, and if finalized, will significantly increase the burden on federal contractors.

Berkshire submitted 48 comments, with most comments expressing concern about the scope of the proposed changes. Our comments focused on three primary concerns about the proposed changes:

  1. Many of the requests in the proposed Scheduling Letter are not required to be included in an annual affirmative action plan under the OFCCP’s current regulations. As a result, Berkshire, along with many others, argued these changes could only be implemented through formal notice and comment rulemaking.
  2. The additional information required would place an undue burden on contractors, since much of the information is not compiled as part of an annual AAP and is not readily available and may have to be manually compiled. Based on our experience helping contractors respond to the current Scheduling Letter, we explained that OFCCP’s current and proposed burden estimates were woefully too low. In addition, Berkshire argued that contractors would need more than the current 30 calendar days to respond to a Scheduling Letter if these changes were initiated.
  3. We also expressed concern that the proposal collapsed the current three-stage approach for compliance reviews, essentially requiring that all contractors provide voluminous amounts of data in every audit when that level of detail is rarely needed in most compliance reviews. Given agency resources and the slow pace of current audits, we explained that the agency did not make an adequate showing that the benefit of gathering this additional information would outweigh the burden imposed on contractors, the majority of whom are found to be in compliance after an audit.

Now that the deadline to submit comments has passed, OFCCP may make further changes, and any revisions also need to be approved by the Office of Management and Budget since the Scheduling Letter is subject to the Paperwork Reduction Act.

Until the changes are finalized, supply and service contractors on current audit lists will continue to receive the Scheduling Letter used by OFCCP in the past. The current Scheduling Letter expires on April 30, 2023. If OMB has not approved a new letter by that date, it typically allows the agency to continue to use the existing Scheduling Letter in 30-day increments.

Lynn A. Clements, Director, Audit and HR Services
Lynn A. Clements, Director, Audit and HR Services
As Berkshire’s Director of Audit & HR Services, Lynn manages Berkshire’s Pay Equity, HR Services and Audit Defense practices. With 25 years of experience in the EEO and affirmative action space -- including nearly eight years working as a former senior official at the EEOC and OFCCP -- Lynn brings a unique blend of regulatory knowledge and practical compliance expertise to every project she oversees.

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