The White House Office of Management and Budget (OMB) has approved the U.S. Department of Labor’s Office of Federal Contract Compliance Program’s new scheduling letter. The updated scheduling letter applies to supply and service compliance evaluations scheduled on or after August 24, 2023.
The notice of the new letter was sent out to the general public on August 25, 2023. To see a discussion of the proposed Scheduling Letter in the December 7, 2022 EPTW article.
Here are some highlights of the new scheduling letter and itemized listing:
The scheduling letter requires that a contractor’s campus, regardless of the number of AAP locations, must all be submitted if one of the locations is scheduled for an audit.
If you are a post-secondary institution or federal contractor with a campus-like setting that maintains multiple AAPs, you must submit the information requested in this scheduling letter for all AAPs developed for campuses, schools, programs, buildings, departments, or other parts of your institution, or company located in [city and state only].
It’s unclear if this requirement would apply to FAAPs. It is also unclear if this provision would apply to maximum number of audits of a contractor in a CSAL.
Revised: 4. For each job group, a determination of minority and female availability pursuant to 41 CFR § 60-2.14.
By expanding it to the full § 60-2.14, it includes reviewing current and discrete statistical information available, reasonable recruitment area, and the pool of promotable, transferable, and trainable employees. However, until OFCCP explains how it will review this section, it may have no impact on establishing availability unless the statistics show some indicator.
New: 7. Pursuant to 41 CFR § 60-2.17(c), provide documentation demonstrating the development and execution of action-oriented programs designed to correct any problem areas identified pursuant to 41 CFR § 60-2.17(b). The documentation should cover action-oriented programs addressing problems areas identified for the immediately preceding AAP year.
Specifically, No. 7 should likely be read in conjunction with the new No. 20 if the itemized listing.
20. Information on your E.O. 11246 affirmative action goals for the immediately preceding AAP year. This report must include information that reflects:
- job group representation at the start of the AAP year (i.e., total incumbents, total minority incumbents, and total female incumbents);
- the placement goals established for minorities and women at the start of the AAP year; and
- the actual number of placements (hires plus promotions) made during the AAP year into each job group with goals (i.e., total placements, total minority placements, and total female placements). For all placement goals not attained, describe the specific good faith efforts made to remove identified barriers, expand equal employment opportunity, and produce measurable results.
If you are six months or more into your current AAP year on the date you receive this listing, please also submit information that reflects progress on goals established in your current AAP year and describe your implementation of action-oriented programs designed to achieve these goals.
This requirement harkens back to the 1990s when good faith efforts were generally provided and considered required in a narrative form to be provided although not identified specifically in the itemized listing at that time. Because it got so burdensome, especially for those contractors with multiple site locations, it has been selectively enforced since the end of the Wilshire (Democratic) leadership of OFCCP.
New: 8 and 12. (Previously 7 and 11) . . . The documentation should also indicate whether you believe the totality of your efforts were effective. In the event the totality of your efforts was not effective in identifying and recruiting qualified individuals with disabilities, provide detailed documentation describing your actions in implementing and identifying alternative efforts, as provided in 41 CFR § 60-741.44(f)(3).
Although they are asking what appears to be a reasonable question, this section becomes a required customizable section. It may take time to conduct such an overarching evaluation by a contractor, and the scheduling letter still requires submission in 30 days.
New 16. (Previous 15): If you are a post-secondary institution, submit copies of your Integrated Postsecondary Education Data System (IPEDS) Human Resources Survey Component data collection reports for the last three years.
This request harmonizes contractors providing three years of EEO-1 reports and universities to do the same with the University IPEDs report, which is filed with the Department of Education. It was not requested in the old, itemized listing.
New 18c.: Promotions: Provide documentation that includes established policies and describes practices related to promotions. Additionally, for each job group or job title, provide the total number of promotions by gender and race/ethnicity. Where the contractor maintains data on whether the promotion is competitive or non-competitive, it may also provide this information in its submission.
In the proposed letter the OFCCP requested a definition of promotion be provided and what department the promotion came from if showing it by job title. The new itemized list deleted those requirements. However, it did add that contractors can provide info voluntarily on competitive and noncompetitive promotions.
And then OFCCP is requesting the previous year’s job group analysis, which it hadn’t in the past.
e. For each job title or job group, provide the total number of employees, by gender and race/ethnicity, as of the start of the immediately preceding AAP year.
New 19. Employee level compensation data for all employees (including but not limited to full-time, part-time, contract, per diem or day labor, and temporary employees, including those provided by staffing agencies) as of (1) the date of the organizational display or workforce analysis and (2) as of the date of the prior year’s organizational display or workforce analysis. For each snapshot, provide a single file that contains for each employee, at a minimum, employee name or numerical ID, gender, race/ethnicity, hire date, job title, EEO-1 Category and job group. If the requested data is maintained in an accessible electronic format, please provide it electronically.
In this section, OFCCP is asking for two years of compensation data, before was current year data only, and data for temporary and contract employees salary data. OFCCP is also asking upfront for all compensation policy documents in 19 c.
Provide documentation and policies related to the contractor’s compensation practices, including those that explain the factors and reasoning used to determine compensation (e.g., policies, guidance, or trainings regarding initial compensation decisions, compensation adjustments, the use of salary history in setting pay, job architecture, salary calibration, salary benchmarking, compensation review and approval, etc.).
For prior year goals, the contractor will have to provide a narrative of good faith efforts in the goal areas not attained or achieved.
New 20c: . . . For all placement goals not attained, describe the specific good faith efforts made to remove identified barriers, expand equal employment opportunity, and produce measurable results.
OFCCP is now reviewing AI tools.
New 21. Identify and provide information and documentation of policies, practices, or systems used to recruit, screen, and hire, including the use of artificial intelligence, algorithms, automated systems or other technology-based selection procedures.
OFCCP wants to ensure that the contractor is continuously reviewing its compensation practices.
New 22. Documentation that the contractor has satisfied its obligation to evaluate its “compensation system(s) to determine whether there are gender-, race-, or ethnicity-based disparities,” as part of the contractor’s “in-depth analyses of its total employment process” required by 41 CFR 60-2.17(b)(3). Include documentation that demonstrates at least the following:
- When the compensation analysis was completed;
- The number of employees the compensation analysis included and the number and categories of employees the compensation analysis excluded;
- Which forms of compensation were analyzed and, where applicable, how the different forms of compensation were separated or combined for analysis (e.g., base pay alone, base pay combined with bonuses, etc.);
- That compensation was analyzed by gender, race, and ethnicity; and
- The method of analysis employed by the contractor (e.g., multiple regression analysis, decomposition regression analysis, meta-analytic tests of z-scores, compa-ratio regression analysis, rank-sums tests, career-stall analysis, average pay ratio, cohort analysis, etc.).
This section is trying to get contractors to annually perform compensation but also pin them down as to how they do it. For most contractors they will conduct an analysis for an audit of the current workforce. The regulations do not prescribe a specific method or analysis needed to comply with 60-2.17(b). When OFCCP made substantive changes to the regulation in 2000, OFCCP stated, “Contractors have the ability to choose a type of compensation analysis that will determine whether there are gender-,race-, or ethnicity-based disparities.” Therefore, the regulations allow contractors to determine an appropriate evaluation that fits its needs. OFCCP should have updated their regulations for this section, and this section may be illegal since it is changing the regulatory requirement.
New 24. Copies of existing written employment policies concerning equal opportunity, including antiharassment policies, EEO complaint procedures, and employment agreements, such as arbitration agreements, that impact employees’ equal opportunity rights and complaint processes in place for the immediately preceding AAP year. If you are six months or more into your current AAP year when you receive this listing, provide this information for at least the first six months of the current AAP year.
This section is new and is a technical review. Many times, contractors will provide these policies as par for course.
For the most part, OFCCP has increased the amount of work contractors have to do in order to have an audit ready plan without providing the additional time it takes to complete all tasks and not estimating correctly the time compliance officers will take to complete a desk audit. If the new scheduling letter does not change the results of audit closures and discrimination findings and greatly lengthens the time to complete an audit, the agency has then accomplished nothing other than increased costs to contractors.
For additional information on the scheduling letter, please read OFCCP's Frequently Asked Questions.