On Wednesday October 1st, the Office of Federal Contractor Compliance Programs (OFCCP) released the new audit scheduling letter approved by the Office of Management Budget (OMB). The new scheduling letter and Itemized listing now has 22 Items to report on, up from 11 in the 2008 Scheduling Letter. The letter will request submission of the AAP and supporting documentation by electronic means, but hard copies can still be sent in. If the data is maintained electronically, it must be submitted electronically.
The OMB did not approve all the reporting requirements that OFCCP included in its draft.
One of the more controversial ones was that employment activity was to be reported by job title and job group. Previously, it was by job title orjob group. OMB did not approve the change, so contractors can continue their previous practice.
However, contractors are now required to submit race and ethnicity information using five specific categories (African-American/Black, Asian/Pacific Islander, Hispanic, American Indian/Native Alaskan, and White) instead of two broad categories (i.e., minority and nonminority). And the Asian/Pacific Islander is combined (as distinct from the EEO-1 report, in which it is separated).
Another controversial change in the initial form submitted for approval was for contractors to provide promotion data broken out by “competitive” and “noncompetitive,” and the appropriate applicant pool for each. They also would have been required to provide termination data by voluntary and involuntary designation. Under new Item 18, this data breakout was dropped and may be submitted as before.
However, new under promotions is a requirement to include the federal contractor’s definition of “promotion,” as used by the establishment subject to the audit. If the “promotion” definition varies by different segments of the workforce or by job title, the term must be defined as used for each segment and/or job title respectively. OFCCP is trying to prove “steering” discrimination, that is, finding that protected class employees are being directed to certain positions that pay less than other positions for which they may be equally qualified. However, it is not known if OFCCP is using the traditional tool, Job Area Acceptance Ratio or JAAR, for any analysis. The JAAR, if used correctly, can identify the concentrations (“brick wall”) and underrepresentation of minorities and women by department in an organization.
Furthermore, old Item 11 required contractors to submit aggregated compensation data. It is now Item 19, under which contractors must submit compensation data by employee, as of the date of the workforce analysis in the requested Affirmative Action Program, as well as the accompanying job title, job group, and EEO-1 category. In addition, OFCCP broadened the definition of “compensation” to include consideration of hours worked, incentive pay, merit increases, locality pay, and overtime.
OFCCP is also expanding the amount of information required for reporting on veteran and disability regulatory requirements (Items 7-14 and 20-22). In certain cases, for example, Item 20—Accommodations Made, and Item 22—Review of Physical and Mental Qualifications, were a routinely secondary requested item, but now are to be included in the initial submission. Item 21—Your most Recent Assessment of Your Personnel Processes, is new. Until an audit occurs, we will likely not know what is really required for this item, e.g., if a single statement will be sufficient, but it will be reported in the new Vet/Disabled AAP.
OFCCP is also requesting extensive support information on the veteran and disability regulations implementation. This information includes:
- Evaluation results that reflect the effectiveness of their outreach and recruitment efforts for qualified individuals with disabilities (IWDs) and protected veterans
- Documentation reflecting efforts to comply with audit and reporting system requirements
- Documentation of the computations for the 7% workforce utilization goal by workforce and 8% veteran aspirational hiring goal
One required submission may be a violation of the regulations. The new scheduling letter requests updated analyses for contractors who are least six months into their current plan year upon receipt of a Scheduling Letter. However, this request for six more months of data is not required in the regulations,since contractors are required to do only yearly assessments. This issue has been brought up to OFCCCP.
Overall, these submissions should not be as intrusive as they appear at first blush since they should be included in the new Vet/Disabled AAP as a routine iItem.
Surprisingly enough, OFCCP had previously included three years of VETS 100 reports as an item in the proposed letter. However, although OFCCP will still require them, it is not in the listing.
Finally, OFCCP is having a two-week moratorium of scheduling audits, giving contractors time to get ready and prepare for the new audit letters. So starting October 16th, the new letters will be used for all new audits. In addition, there will be FAQs released during this 15-day”audit