The OFCCP Scheduling Letter and Itemized Listing - used to initiate OFCCP supply and service compliance evaluations - is set to expire March 31, 2016. In anticipation of this coming date, OFCCP must obtain approval through Office of Management and Budget (OMB) to extend the date and continue use of the letter. Although OFCCP reassures that no new items will be added to change or expand upon data collection, several “minor clarifying edits” (as described in OFCCP’s supporting statement to OMB) have been added. One addition that has raised concern amongst contractors is as follows:
“Please also be aware that OFCCP may use the information you provide during a compliance evaluation in an enforcement action and may share such information with other federal government agencies to promote interagency coordination and collaboration.”
Although OFCCP has communicated that the intent of the new language is merely to enhance transparency between the agency and the contractor community, there is some concern over potential implications of the proposed language. Most importantly, little information is available to expound upon what and how information may be shared between OFCCP and other agencies. Slightly more is known about information shared with OFCCP; for example, it is defined in the Active Case Enforcement (ACE) Procedures that OFCCP receives and reviews information on past complaints filed with the Equal Employment Opportunity Commission (EEOC) for contractor establishments selected for audit (e.g., nature, status, and outcome of complaints). However, aside from broad practices outlined in the EEOC-OFCCP Memorandum of Understanding (e.g., OFCCP may refer cases to EEOC where appropriate), the type and extent of information that may be shared by OFCCP is largely unknown. In anticipation of questions that will undoubtedly arise from contractors, OFCCP may want to consider strategies for clarifying its practices and easing concerns surrounding interagency information sharing. One possible option may be for OFCCP to release a directive on this subject.
The 60-day public comment period will begin once OMB has reviewed the OFCCP information collection. DCI strongly encourages contractors to submit comments during this time (TBD) to voice concerns and/or suggestions for OMB consideration.
By Keli Wilson, Principal Consultant and Rachel Gabbard, Associate Consultant at DCI Consulting Group
