• Changes to OFCCP Proposal to Overhaul Audit Submission for Federal Contractors Disregard Main Issue
  • October 6, 2011 | Authors: Eric John Felsberg; Mickey Silberman
  • Law Firms: Jackson Lewis LLP - Melville Office ; Jackson Lewis LLP - Denver Office
  • The Office of Federal Contract Compliance Programs has proposed a revised Scheduling Letter and associated Itemized Listing (used to commence agency audits of employers). This is a revised version of the proposed changes originally published on May 12, 2011. (See our article, OFCCP Seeks to Overhaul Audit Submission for Federal Contractors.) The September 28, 2011 Notice of Proposed Rulemaking contains minor changes based on public comments to the May 12th proposal. The agency will accept public comments its proposal (available at www.regulations.gov) from contractors and other members of the public for a 30-day period, until October 28, 2011.

    Significant Changes Rejected
    OFCCP generally declined to make any significant changes suggested by the public comments to the May 12th proposal. The agency contends its proposed changes actually will result in a “net reduction of 1.34 hours in the total burden hours spent by contractors” preparing and submitting affirmative action plans (“AAPs”) with data responsive to the new Scheduling Letter.

    However, OFCCP’s proposal likely will increase contractors’ burden for meeting OFCCP’s new initial audit submission requirements. The proposal mandates that contractors provide more data in multiple areas, including (a) detailed employee-specific pay data for every employee (this traditionally is requested only where OFCCP identifies indicators of potential discrimination); (b) data on individual race/ethnic groups, by both job group and job title (this will allow OFCCP to conduct more detailed adverse-impact analyses); (c) data on “actual pool” of employees considered for promotions and terminations; and (d) Family and Medical Leave Act (FMLA) and other leave or accommodation policies.

    Minor Modifications
    While OFCCP did not reject all comments to its May 12th proposal, those it accepted are minor. For example, the agency agreed to allow contractors the option of submitting leave policies by producing their entire employee handbook or submitting only relevant pages (including the front cover of the handbook or manual, the table of contents, and those pages with leave policies). It also announced that it will continue to accept data that reflects either the race/ethnicity categories required by the Equal Employment Opportunity Commission in the EEO-1 report or required by OFCCP regulations. In addition, in determining the “pool” of candidates eligible for termination, OFCCP will give contractors “the discretion to develop and use their own business definition” of voluntary and involuntary terminations. Finally, OFCCP will limit the submission of VETS-100/100A reports to those for the current and preceding year, as opposed to the three years originally proposed.

    Current Scheduling Letter in Effect beyond September 30
    The current Scheduling Letter, which is set to expire on September 30, 2011, will remain in use until the proposed Scheduling Letter is approved. It is unclear when that will happen.

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    The proposed changes represent significant departures from the current Scheduling Letter. This is another example of OFCCP’s aggressive enforcement agenda.