On April 18, 2023, the Office of Federal Contract Compliance Programs (OFCCP) issued an updated scheduling letter[1]. OFCCP rejected the vast majority of the comments submitted by the contractor community in response to the agency’s draft published on November 21. Because the scheduling letter is a Paperwork Reduction Act review rather than a regulatory change, OFCCP is not required to provide the basis for rejecting contractors’ comments, particularly those related to the significant increase in burden.
FordHarrison issued a detailed client alert on November 28, 2022 outlining the proposed changes. The only differences between the initial draft of the amended scheduling letter and the current version are:
- OFCCP prefers to have contractors submit their scheduling letter responses electronically. In addition to email, going forward contractors may submit responses through the Contractor Portal or OFCCP’s new secure fileshare system, Kiteworks.
- The Agency cut back on a few of its proposed changes to information and data related to compliance with Executive Order 11246:
- Rather than providing a list of all action-oriented programs designed to correct any problem areas identified pursuant to a 2.17(c) assessment, contactors must provide documents demonstrating the “development and execution” of action-oriented programs.
- Contractors will not be required to report promotion data broken out by competitive and non-competitive movements. OFCCP also deleted the requirement that for each promotion, contractors identify the previous and current supervisors and previous and current compensation.
- With respect to terminations, OFCCP removed the proposed requirement that contractors provide the reason for each termination.
- Despite contractors’ objections, OFCCP is standing by its demand that contractors submit their responses to this enhanced scheduling letter within 30 days of receipt.
The most concerning aspect of this most recent draft of the scheduling letter is OFCCP’s burden estimate. Contractors’ comments uniformly called for the agency to reevaluate its initial estimate of 39 hours for responding to the scheduling letter. Indeed, contractors estimated the burden to be closer to 90 hours per scheduling letter response. OFCCP responded to contractors’ concerns by cutting the burden associated with responding to the new scheduling letter from 39 hours to 37.5. This estimate does not reflect reality for most contractors, particularly those with dozens of AAPs and a centralized compliance function.
Contractors interested in submitting comments and objections to the current version of the letter must do so by May 17, 2023. At that point, the Office of Management & Budget (OMB) will begin its review and will make a determination whether to approve the letter in its current form or request that OFCCP make further changes.
The current scheduling letter expires on April 30, 2023. OMB will extend this expiration date to allow for its review and OFCCP’s response.
If you have questions about the updated scheduling letter, would like assistance submitting a comment, or would like to join other FordHarrison clients in submitting a comment through the firm, please reach out to Nancy Holt, nholt@fordharrison.com, or the FordHarrison attorney with whom you work.
[1] The proposed Scheduling Letter refers to affirmative action plans (AAPs) only. But, the proposed changes likely apply to functional affirmative action plans (FAAPs) as well.