OFCCP Receives Approval for Scheduling Letters
On April 3, 2020, OFCCP received approval from the Office of Management and Budget (OMB) for the letters it uses to open compliance reviews. OFCCP had proposed major revisions to these scheduling letters in 2019. However, the agency effectively withdrew all these changes. OMB then approved the “new” scheduling letters, which have an expiration date of April 30, 2023.
Four Scheduling Letters Approved
OMB approved four separate scheduling letters that may be used by OFCCP to begin compliance reviews for supply and service federal contractors and subcontractors.
- There is a scheduling letter to be used for traditional compliance reviews
- There is a scheduling letter to be used for focused reviews under the federal affirmative action law regarding individuals with disabilities. (This law is referred to as Section 503.)
- There is a scheduling letter to be used for focused reviews under the federal affirmative action law regarding protected veterans. (This law is referred to as VEVRAA.)
- There is a scheduling letter to be used for the abbreviated form of a compliance review called a compliance check.
OFCCP has a different process it uses to conduct compliance reviews of construction contractors and subcontractors. OMB approved compliance check scheduling letters for construction compliance reviews on April 7, 2020. We will cover these construction-related letters in a separate post.
Minimal Changes to Scheduling Letters
The changes to the scheduling letters approved by OMB on April 3 were limited in scope. OFCCP had proposed dramatic changes to all of its scheduling letters for supply and service contractors and subcontractors in April of 2019. These changes would have significantly increased the burden on employers undergoing compliance reviews. This would especially have been the case for focused reviews under Section 503 or VEVRAA. The proposed scheduling letters for focused reviews would have required the submission of a significant level of data that employers typically do not keep. They would also have required the submission of compensation data.
OFCCP’s proposed changes to the traditional scheduling letter would have requested information on an employer’s three largest subcontractors. The scheduling letter would also have required that employers provide placement goals on all racial subgroups. Further, the letter would have request any analysis of compensation an employer had completed. There were additional changes proposed by OFCCP that would have changed the nature of traditional compliance reviews.
OFCCP provided a supporting statement to OMB in regard to the version of the scheduling letters that were approved. In that supporting statement, OFCCP acknowledged that its proposed changes would have significantly increased the burden on federal contractors and subcontractors. The agency stated that it had the right to collect the kind of information found in the proposed scheduling letters. However, the agency decided that rather than collecting an extensive level of additional information at the start of a compliance review, it would request information later as required to complete the review.
New VEVRAA Scheduling Letter and Changes to Section 503 Scheduling Letter
OFCCP has previously had scheduling letters for traditional compliance reviews, focused reviews under Section 503, and compliance checks. However, until April 3, the agency did not have an approved scheduling letter to conduct focused reviews under VEVRAA. That long-promised scheduled letter is now available.
The VEVRAA focused review scheduling letter closely parallels the Section 503 focused review scheduling letter. The Section 503 scheduling letter in turn is basically just a reduced version of the traditional scheduling letter.
There were several items dropped from the previous version of the Section 503 focused review scheduling letter. These items are as follows:
- Information on the formation of job groups found in the Executive Order 11246 affirmative action plan
- Documentation of actions taken to comply with the audit and reporting systems requirement in the Section 503 regulations
- Copies of the last three years of EEO-1 reports
The Section 503 scheduling letter previously required employers to provide a date for their most recent assessment of personnel processes. That letter also required a date for their most recent assessment of physical and mental qualifications. While these assessments still must be provided to OFCCP as part of a Section 503 focused review, there is no longer a requirement to provide a specific date the review was completed.
In paralleling the Section 503 focused review scheduling letter, the VEVRAA focused review scheduling letter incorporated the changes noted above. Thus, there is no requirement in the VEVRAA letter to provide copies of EEO-1 reports or to provide a date regarding the assessment of personnel processes.
Effective Date of New Scheduling Letters
OFCCP is likely to put its new scheduling letters into effect as soon as possible. The agency has been using its previous scheduling letters since the formal approval on these letters expired in June of 2019. Each month since June, the agency has been required to ask OMB for a one-month extension of the previous letters. The agency can now use its “new” letter until April of 2023.
The new scheduling letters will have no effect on federal contractors and subcontractors currently involved in a compliance review. These employers should have provided information according to the scheduling letter received at the time their compliance reviews opened.