OFCCP Proposes New Requirements for Construction Contractors

OFCCP has posted proposed changes for Construction Contractors compliance that include (1) reinstatement of the Monthly Employment Utilization Report, (2) revisions to the Construction Contractor Scheduling Letter and (3) modifications of the Construction Contract Award Notification Form.

Employment Utilization Report for Construction Contractors (CC-257)

OFCCP is proposing to resurrect the Monthly Employment Utilization Report (CC547), with some revisions. This report was discontinued in 1995 and the agency is proposing its reinstatement to “strengthen its construction program by using the collected information to inform compliance assistance efforts and track the progress of contractor's outreach efforts and the agency's Megaproject Program.” The collected information would also be used by OFCCP in scheduling compliance evaluations of covered construction contractors.

The reports would require construction contractors to submit, on a monthly basis, number of employees and hours worked by race/ethnicity and gender for each trade working on construction projects in geographic areas where federal construction projects were active during the month reported.

According to OFCCP, this additional reporting requirement would only take contractors 1.5 hours to complete. Companies who would be required to begin this reporting would likely disagree with the OFCCP’s time estimate.

Comments on this proposal are due by April 23, 2024. OFCCP is particularly interested in comments that:

• Evaluate the proposed reinstatement of the CC–257 and the proposed changes to the CC–257.
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility.
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.

Revised Scheduling Letter

OFCCP also is proposing changes to the Scheduling Letter and Itemized Listing for Construction Contractors. Unlike contractors with Supply and Service contracts, Construction Contractors are not required to prepare annual written affirmative action plans for compliance with Executive Order 11246. However, they are required to meet compliance obligations under the Executive Order and also prepare written AAPs for compliance with Section 503 of the Rehabilitation Act of 1973 (“Section 503”), and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (“VEVRAA”).

OFCCP is proposing changes to the scheduling letter to allow for “more robust” analyses, clarify what information contractors should provide and for whom, ensure uniformity in what information field offices are requesting, better focus its inquiries, and assist OFCCP in determining whether construction contractors are meeting their Affirmative Action obligations. Some of the changes proposed to the letter are inconsequential, others are more substantive. The more substantive changes include:

• Requests for additional employee level data, such as job title, total regular pay, total overtime pay, and bonus or other forms of payment made to employees.
• Specifying that data collected should include: “trade employees, as well as those employees involved in the supervision, inspection, and other onsite functions incidental to the actual construction.
• Lists of employees who were subject to layoffs.
• Copies of anti-harassment policies, policies on EEO complaint procedures, and policies on employment agreements that impact employees’ equal opportunity rights and complaint processes.
• Documentation of all tests and selection procedures, including evidence that these tests and selection procedures were validated.
• Evidence that personnel and employment related activities were monitored to ensure practices did not have a discriminatory effect, and that EEO policies and EEO obligations were being carried out.
• Changes to requirements under Section 503 and VEVRAA are consistent with those made earlier to the Supply and Service Scheduling Letter.

Contractors have until April 26, 2024, to submit comments on these proposed changes.

Construction Contract Award Notification Form

OFCCP is also proposing changes to the Construction Contract Award Notification Form CC314, the form used to provide notice to OFCCP within 10 days of being awarded a construction contractor subcontract in excess of $10,000. Comments on these changes are also due by April 26, 2024.

If you are a Construction Contractor and would like assistance or have questions regarding your Affirmative Action obligations, Berkshire can help.