OFCCP Proposes Significant Revisions to Audit Scheduling Letter and Itemized Listing
Nov 22, 2022
The Office of Federal Contract Compliance Programs (OFCCP) submitted a revised Scheduling Letter and Itemized Listing form to the Office of Management and Budget (OMB) for approval on November 21, 2022. The Scheduling Letter is used to commence an OFCCP desk audit and requires a response within 30 days to the detailed data requests included in the letter. Failing to respond fully within 30 days may result in the federal contractor facing litigation filed by OFCCP. All comments on the proposed changes are due by January 20, 2023.
OFCCP’s proposed revisions seek to significantly broaden the scope of data required to be produced during a compliance evaluation and may include requirements that exceed the Agency’s regulatory authority.
The most significant changes to the Scheduling Letter and Itemized Listing forms include:
- Higher education will be required to provide OFCCP with all AAPs developed for all campuses, schools, etc. within a single city. With this proposed requirement, OFCCP is seeking to use the Scheduling Letter to circumvent the regulations that clearly permit the development – and audit of – establishment-based AAPs in higher education.
- Contractors will be required to provide “[d]ocumentation of policies and practices regarding all employment recruiting, screening, and hiring mechanisms, including the use of artificial intelligence, algorithms, automated systems or other technology-based selection procedures.”
- Compensation data reporting is expanded from 1 year to 2 years by requiring reports from both the current date of the organizational display/workforce analysis and the prior year’s organizational display/workforce analysis.
- Contractors will be required to provide documentation to establish that it has evaluated its compensation systems, including detailed information on the forms of compensation analyses conducted. This proposal seeks to create obligations on federal contractors that exceed the regulatory requirements.
- Contractors will be required to include individuals employed by staffing agencies in the compensation data report. This is an attempt to expand the current applicable definition of a covered employee.
These are a few examples of the sweeping changes proposed by OFCCP. The entire proposed Scheduling Letter and Itemized Listing can be accessed here. If implemented as proposed, these changes will result in highly burdensome compliance evaluations and significantly increase federal contractors' compliance costs during audits.
Clients interested in filing comments should contact the FortneyScott attorney they work with or email us at info@fortneyscott.com.
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