In the wake of the new scheduling letter (released in October 2014) and the ensuing OFCCP audit activity, contractors are taking steps to prepare for possible audits. The contractor community has raised a number of questions and concerns in response to the new scheduling letter and certain OFCCP requests for information. One question that DCI has received quite frequently concerns the temporal scope of an “update” plan. Under the scheduling letter, contractors who are six months or more into the current AAP year are required to submit personnel activity data covering “at least the first six months” of the current AAP year in addition to data covering the preceding AAP year. Contractors subject to submitting “update” data in an audit are left to wonder: What is meant by “at least” the first six months? What if the OFCCP requests more than six months of update data?

Recently, DCI has observed several OFCCP requests that are worthy of deliberation. On several occasions, compliance officers have requested update data that not only exceeds six months but also exceeds the scope of the scheduling letter. For example, a contractor with a January 1 AAP who receives a scheduling letter in September must provide update data on personnel activity through at least the end of June. Then months after the audit has begun the compliance officer requests update data for the entire year, which would require the contractor to submit update data through December – three months past the receipt of the scheduling letter. There are two issues to consider: Should the contractor submit only 6 months of data or fulfill the request for 8 months? Additionally, should the contractor submit data that extends beyond the scope of the audit?

The OFCCP offers somewhat conflicting guidance. FAQs on AAP support data state that contractors who are “six months or more into the AAP year must submit information that reflects progress on goals established in the current AAP.” The FAQs go on to discuss options for contractors receiving a scheduling letter within 30 days of their AAP date. In this situation, contractors can either submit the new AAP or the previous year’s AAP along with 11 months of support data, for a total of nearly two years of data. The FAQs do not state that contractors are ever required to A) submit a full year of data for an update plan or B) submit data past the scope of the audit letter. However, contractors are receiving both of these requests.

DCI recommends that, at the desk audit stage, contractors should submit six months of update data. If the contractor receives follow-up requests for additional data, DCI offers the following guidance: Based upon our interpretation of the scheduling letter, update plans should include data covering a 6-month period; however, the FAQs suggest that contractors may be obligated to submit more than 6 months. Contractors should not consider submitting more than 6 months of data unless a specific follow-up request is made for this information. In any event, DCI cautions against submitting data that surpasses the scope of the audit (e.g., past the scheduling letter receipt date).

By Rachel Gabbard, M.A., HR Analyst and Keli Wilson, M.A., Senior Consultant, DCI Consulting Group 

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