OFCCP Receives OMB Approval for New Scheduling Letters

This week, OFCCP released the new scheduling letters for compliance checks, establishment reviews, and Section 503/VEVRAA focused reviews. The new letters are available here.

In a bit of good news for contractors, the approved scheduling letters do not include most of the sweeping changes OFCCP originally proposed in April 2019 and revised in June 2019. The approved letters are much closer to the existing scheduling documents than the proposed changes issued by the agency last year. OFCCP did not finalize its proposed requirement that contractors provide subcontractor information. Other radical changes like the “life cycle” data for reporting of IWDs and Veterans, and changes to the pools submitted for promotions and terminations, were also not finalized.

In fact, a review of the new documents reveals primarily grammatical updates and very few material changes to the existing letters. The one item that is substantially different is language around electronic filing of audit documents. OFCCP indicates that around 50% of respondents file these reports electronically. However, most Berkshire clients have already moved to providing electronic audit filings. Below is a brief analysis of each letter.

Compliance Check: This letter was largely unchanged and still requires that contractors provide AAP results for all three plans, examples of job postings, and examples of reasonable accommodations for the facility under audit. The citation for the EO AAP references a part of the regulations that governs who is required to develop an AAP, and the citations for the IWD and Veterans’ AAPs reference the components of the AAP, and not a specific report. Language providing for the optional offsite review of records and that any documents submitted in response may be subject to FOIA requests is included in this version. Interestingly, this letter removes the description of focused reviews as “on-site reviews limited to one or more organizational components or employment practices”, in a signal that the on-site component of those reviews will no longer be required. OFCCP indicates a projected burden of 2 hours to respond to this type of review.

Establishment Review: The revised scheduling letter for establishment and Corporate Management Compliance Reviews (CMCEs), and Functional Affirmative Action plans (FAAPs) was largely unchanged.  The new letter clarifies that contractors should only provide Component 1 of the EEO-1 report, which is the race/gender headcount section and not the controversial “Component 2” compensation portion. The goal attainment section (item 17) is clarified to reference the EO 11246 AAP. In the personnel process assessment (item 21), the request for a date of the last review and of the next scheduled review is replaced with a request for a description of the assessment. In the mental and physical qualification review (item 22), the request for a date of the last review and of the next scheduled review is replaced with a request for a schedule to complete the assessment. OFCCP indicates a projected burden of 28 hours to respond to this type of review.

Section 503 Focused Review: This scheduling letter includes some more significant changes.  The agency eliminated the specific request for the job group analysis of the EO 11246 AAP and replaced it with a request for the EO 11246 AAP. Although not clearly specified, it appear the agency would like contractors to submit all roster-based reports (organizational display, job groups, availability, comparison of incumbency to availability, and placement goals) from the current year EO 11246 AAP, but not personnel activity reports. This is in line with a footnote in the letter that “OFCCP will not analyze data contained in the Executive Order 11246 AAP to look for discrimination based on sex or race and ethnicity.” In addition, the agency eliminated the requirement to provide EEO-1 reports and documentation of the audit and reporting system during a Section 503 focused review. OFCCP indicates a projected burden of 6.5 hours to respond to this type of review.

VEVRAA Focused Review: This letter is new and mirrors the Section 503 letter. The letter includes the requirement to provide the current year EO 11246 AAP. Other requirements include:

• Documentation of outreach efforts with evaluations
• Data collection analysis, updated if more than six months into the AAP year
• Current benchmark established
• CBA if the location is unionized
• Reasonable accommodation policy and list of requests
• Personnel processes review
• Mental/physical qualification review

OFCCP indicates a projected burden of 6.5 hours to respond to this type of review.

These letters are expected to be used for any audits initiated after April 7, 2020. Berkshire will monitor the implementation of these new letters and will provide updates as they are rolled out by the agency.