On September 30, 2014, the Office of Federal Contract Compliance Programs ("OFCCP") published a Notice in the Federal Register announcing a newly approved Scheduling Letter and Itemized Listing.
Executive Summary: On September 30, 2014, the Office of Federal Contract Compliance Programs ("OFCCP") published a Notice in the Federal Register announcing a newly approved Scheduling Letter and Itemized Listing. The Itemized Listing, used in conjunction with the Scheduling Letter, identifies the documents and information that contractors must provide at the onset of the desk audit phase of an OFCCP compliance evaluation for non-construction supply or service federal contractors.
The new OFCCP Scheduling Letter and Itemized Listing was officially released on October 1, 2014 and was effective immediately. According to the Department of Labor, however, the OFCCP will not schedule supply and service compliance evaluations between October 1 and October 15, 2014, so contractors can become familiar with these new requirements.
Changes to Prior Itemized Listing:
- Compensation data must now be submitted for all employees including per diem or day laborers, temporary employees, full-time and part-time, as of the date of the workforce analysis in the contractor's AAP. The definition of compensation includes hours worked, incentive pay, merit increases, locality pay, and overtime. Additionally, other compensation or adjustments to salary (bonuses, incentive pay, commissions, merit increases, locality pay or overtime) should be identified separately for each employee. Contractors are permitted to provide additional factors used in determining compensation, such as education, past experience, location, performance, department and salary level/band/range/grade.
- Personnel activity data still may be submitted by Job Group or Job Title (contrary to proposed versions).
- Employment activity data (applicants, hires, promotions and terminations) must be provided by sex and race; however, race and ethnicity information must be submitted using five specified categories instead of two broad categories (i.e., minority and nonminority). Notably, the OFCCP did not adopt EEO-1 race categories — Asian/Pacific Islander remain together and there is no "two or more races" category. It will be interesting to see what the OFCCP does with the two additional race categories. Contractors also must include in each job group or job title, applicants for whom race and/or sex is unknown.
- A definition of "promotion" must be included and the basis on which it was compiled; if the definition varies for different segments in the workforce, the contractor must define the term for each segment.
- Copies of reasonable accommodation policies and documentation regarding any accommodation requests and how they were resolved must be submitted.
- All data must be submitted electronically if it is maintained in an electronic format that is "complete, readable and useable."
New Items Per Section 503 and Section 4212 (VEVRAA):
- Results of an evaluation of the effectiveness of the contractor's outreach and recruitment efforts.
- Documentation of all actions taken to comply with audit and reporting systems described in Sections 503 and VEVRAA.
- Documentation of the computations or comparisons described in 300.44(k) and 741.44(k) (e.g., number of applicants, number of jobs filled and number of protected veteran applicants).
- Utilization analysis evaluating the representation of individuals with disabilities in the contractor's workforce.
- Documentation of the hiring benchmark under VEVRAA and the methodology used to establish it if the contractor is using the five factors.
- An assessment of personnel processes, including the date the assessment was performed, actions taken and the date of the next assessment.
- An assessment of mental and physical qualifications, including the date of the assessment, actions taken as a result and the date of the next assessment.
Based upon the above, federal contractors should review their AAP data and record keeping policies and procedures to ensure they are prepared to timely respond should they receive a new Scheduling Letter and Itemized Listing. REMEMBER CONTRACTORS STILL ONLY HAVE 30 DAYS TO RESPOND.
If you have any questions regarding the newly revised Scheduling Letter and Itemized Listing or other employment-related issues affecting federal contractors, feel free to contact Bari Goldstein, bgoldstein@fordharrison.com, Linda Cavanna-Wilk, lcavanna-wilk@fordharrison.com, or any other member of FordHarrison's Affirmative Action/OFCCP practice group. You may also contact the FordHarrison attorney with whom you usually work.