More than three years after it promised federal contractors a new Scheduling Letter and Itemized Listing, the OFCCP finally delivered on October 1. The OFCCP sends a Scheduling Letter to contractors at the beginning of an audit to request copies of the contractor’s Affirmative Action Plan(s) and other data within 30 days of the contractor’s receipt of that letter. The Itemized Listing, used along with the Scheduling Letter, identifies the supporting documents and information that contractors must provide at the desk audit phase of an OFCCP Compliance Evaluation for federal contractors. While the new letter became effective immediately, the OFCCP held off on scheduling supply and service compliance evaluations until October 15, 2014, to afford contractors some time to become familiar with the changes.
What exactly has changed? Some of the changes are in the Scheduling Letter itself, while the majority are in the Itemized Listing, with the primary focus on implementing the new rules relating Section 503 of the Rehabilitation Act and Section 4212 (VEVRAA). The other significant change focuses on contractors’ compensation practices.
A. Changes to the Scheduling Letter:
The new Scheduling Letter now tells you whether you have been selected for a routine compliance evaluation or a management compliance evaluation. (A Corporate Management Compliance Evaluation, also known as a Glass Ceiling Audit, per 41 C.F.R. Section 60-2.30, is “designed to ascertain whether individuals are encountering artificial barriers to advancement into mid-level and senior corporate management, i.e. glass ceiling”.) The Scheduling Letter also indicates whether the OFCCP intends to conduct the compliance evaluation for your establishment, functional unit or corporate headquarters. Here are some of the other changes to the Scheduling Letter:
• No more reference to 41 C.F.R. Part 60-250 (the portion of VEVRAA regulations rescinded as outdated.);
• A new warning, that failure to preserve records through the final disposition of the compliance evaluation constitutes “non-compliance”;
• Previous language affirming that all information submitted would be treated “as sensitive and confidential to the maximum extent permitted under the Freedom of Information Act” has been changed. Now, the OFCCP merely “assures” that any disclosures the agency makes will be “consistent with the provisions of” FOIA.
• The new Scheduling Letter states that during the Compliance Evaluation the OFCCP will also be verifying your compliance with the regulations issued by “VETS”, requiring contractors covered under Section 4212 to file an annual report on their employment and hiring of protected veterans (more on that in a moment).
B. Changes to the Itemized Listing:
One significant change is the sheer number of items requested. Whereas the previous Itemized Listing contained 11 Items, the new one contains 22. The first 6 items are carried over from the previous Itemized Listing. The following items are new:
• Items 7–9: requires submission of the results of internal evaluations of outreach efforts to attract qualified individuals with disabilities (IWD’s) and documentation of all actions taken to comply with auditing, reporting and recordkeeping requirements for applicants, hires, and job openings under the Section 503 amendments.
• Item 10: requires utilization analysis of each job group, evaluating IWDs’ representation within the contractor’s workforce to determine which job groups did and did not meet the 7% utilization goals.
• Items 11-13: parallel items 7–9, but apply to protected veterans.
• Item 14: requires you to document: a) your hiring benchmark; b) the methodology you used to establish that benchmark, and c) whether you used the 5 factors set forth in 41 C.F.R. Sec. 60-300.45(b)(2) or the OFCCP’s 7.2% benchmark for 2014.
• Items 15-17: are carryovers from the old Itemized Listing. Item 15 asks for 3 years of EEO-1s. Item 16 asks for the Collective Bargaining Agreement, if applicable, and “any other documents you prepared, such as policy statements, employee notices or handbooks, etc., that implement, explain or elaborate on the provisions of the collective bargaining agreement”. Item 17 is the same as the old Item 9, which asks for job group representation at the start of the prior plan year, goals in the prior year’s AAP and progress toward those goals.
• Item 18: while derived from old Item 10 regarding applicants, hires, promotions and terminations, requires submission of data activity according to individual race. (Previously, you could submit this information in terms of “minorities” and “non-minorities”.) Note that the OFCCP’s five race categories, a) African- American/Black; b) Asian/Pacific Islander; c) Hispanic; d) American Indian/Alaskan Native; e) White, differ from the seven categories listed in the EEO-1. The OFCCP does not want information on anyone who self-identifies as “Two or More Races”. As to promotion data, you must include how you define “promotions”, whether promotions are to, from, or within the job group. If you present data by job title, you must now include the department and job group from and to which the employee is promoted.
• Item 19: requires submission of compensation data at an individual employee level, rather than the previously required group level. We will look at how the OFCCP now defines “compensation” and “employees” in Part 2 of this post.
• Item 20: requires submission of data related to reasonable accommodations for religion and disability, including policies, requests made for reasonable accommodations and resolution of requests, both granted and denied.
• Items 21 and 22: seeks information about most recent internal assessments of personnel policies, and physical and mental qualifications for jobs. Assessments must focus on preventing stereotyping and ensuring equal access for IWD’s and veterans to employment opportunities, and on the extent to which current practices may unfairly disadvantage these groups. If any such practices are found to do so, you must make every effort to promptly correct such problems. Data should include the most recent assessment and changes to any personnel policies and physical and mental qualifications.
What do all these additions mean for those of you in the contractor community, and what exactly are the new requirements regarding compensation data? Watch for Part 2 of this post, where we will answer those questions!
For more information, contact Ahmed Younies at 714- 426-2918, x. 1 or [email protected].