OFCCP Proposes Major Changes to Scheduling Letter and Itemized Listing

By: Mitchell Chamberlin

On November 20, 2022, the Office of Federal Contract Compliance Programs (OFCCP) proposed major changes to the scheduling letter and itemized listing it uses to initiate compliance reviews of covered federal supply and service contractors and subcontractors. The current versions, which were first proposed in April of 2019, updated in July of 2019, and approved for use in April of 2020, are set to expire on April 30, 2023. As part of the approval process for OFCCP’s newest proposals, written comments must be submitted on or before January 20, 2023.

The proposed scheduling letter and itemized listing expand or add a number of requirements for federal contractors and subcontractors undergoing a review. The most important proposed changes are summarized below: 

Changes to the Scheduling Letter 

• Language is added to allow for OFCCP to email scheduling letters.  
• Language is added to clarify that post-secondary education institutions and contractors with “campus-like settings” must submit information for all affirmative action plans (AAPs) for that campus, even if separate AAPs are maintained for different buildings or addresses. 
• Language is added to request submission of documents electronically via a provided email address. 

Changes to the Itemized Listing 

• Item 7 – This is a new item requesting a list of all action-oriented programs designed to correct any problem areas pursuant to 42 CFR 60-2.17(b). That section of the regulations requires contractors to perform in-depth analyses of their total employment process to determine whether and where impediments to equal employment opportunity exist. 
• Item 8 (previously Item 7) – Adds language to provide more specificity on the documentation that must be submitted regarding outreach and positive recruitment efforts under the federal affirmative action regulations for individuals with disabilities, including the requirement to provide documentation describing actions to be taken when outreach efforts were ineffective. 
• Item 11 (previously Item 10) – Adds language to provide more specificity on the documentation a contractor must submit regarding the disability utilization analysis, including an assessment of personnel processes, outreach and recruitment efforts, and action-oriented programs developed and executed to correct identified problem areas. 
• Item 12 (previously Item 11) – Adds language to provide more specificity on the documentation a contractor must submit regarding outreach and positive recruitment efforts under the federal affirmative action regulations regarding protected veterans, including the requirement to provide documentation describing actions to be taken when outreach efforts were ineffective. 
• Item 16 (previously Item 15) – Adds a request for post-secondary educational institutions to submit copies of the Integrated Postsecondary Education Data Systems (IPEDS) Human Resources Survey Component data collection reports for the last three years. 
• Item 19 – Adds a new item requesting “Documentation of a contractor’s policies and practices regarding all employment recruiting, screening and hiring mechanisms, including the use of artificial intelligence, algorithms, automated systems, or other technology-based selection procedures.” 
• Item 20 (previously Item 18) – Adds or changes a number of requirements including: 
  • Modifies Item 20(c) to require contractors to identify whether a promotion is competitive or non-competitive 
  • Adds a requirement to item 20(c) to provide information on previous and current supervisors and previous and current compensation in regards to promotions.
  • Adds a requirement to Item 20(c) to require contractors to provide documentation of their established policies and practices related to promotions. 
  • Modifies Item 20(d) regarding persons leaving the workforce to require contractors to break down the number of terminations by reason for termination. OFCCP cites the following examples: retirement, resignation, conduct. 
  • Adds Item 20(e) to request the total number of employees, by gender and race/ethnicity, as of the start of the immediately preceding AAP year for each job title or job group. 
• Item 21 (previously Item 19) – Adds or changes a number of requirements including:
  • Adds language to update the employee-level compensation data request to require a second snapshot of data as of the date of the prior year’s organizational display or workforce analysis. 
  • Adds language to clarify that temporary employees provided by staffing agencies must be included in the compensation report data. 
  • Changes language in Item 21(b) to state that factors used to determine employee compensation such as education, experience, and time in current position must be included in the data submission. 
  • Changes language in Item 21(c) to require the submission of documentation and policies related to compensation. 
• Item 22 – Adds a new item requesting documentation that the contractor has satisfied its obligation to evaluate its compensation system(s) to determine whether there are gender-, race-, or ethnicity-based disparities. Contractors must provide the following information: 
  • When the compensation analysis was completed 
  • The number of employees the compensation included and excluded 
  • Which forms of compensation were analyzed 
  • The method of analysis employed by the contractor (OFCCP cites examples of tests such as multiple regression analyses, meta-analytic tests of z-scores, compa-ratio regression analyses, rank-sum tests, average pay ratios, and cohort analyses) 
• Item 23 (previously Item 20) – Adds language to clarify that information about requests for reasonable accommodation that occurred during the last AAP year must be submitted. 
• Item 24 – Adds a new item requesting copies of existing written employment policies and documents that may have ramifications for the equal treatment of employees, including anti-harassment policies, EEO complaint procedures, and employment agreements. 
• Item 25 (previously Item 21) – Adds language to provide more specificity on the documentation a contractor must submit regarding its review of personnel processes. 

Individuals and organizations wishing to comment on the revisions to OFCCP’s scheduling letter and itemized listing may do so at Regulations.gov. Comments made by the public may have significant impact on whether OFCCP’s proposal changes to the scheduling letter and itemized listing are accepted by the Office of Management and Budget. DCI will continue to analyze the proposed scheduling letter and itemized listing and will release new information, as appropriate. Additionally, DCI will monitor this proposal and provide updates regarding its progress through the approval process.