By: Bill Osterndorf
In July of 2021, OFCCP dramatically changed the letter that is used to open compliance reviews for construction companies. This letter, called a scheduling letter, includes an itemized listing of materials that must be submitted to OFCCP at the start of a compliance review. The scheduling letter gives an organization 30 days from the receipt of the letter to submit all required information.
On February 26, 2024, OFCCP published a notice in the Federal Register with proposed changes to the construction scheduling letter. The notice also indicated that OFCCP intends to ask for more information on its Construction Contract Award Notification form (form CC-314). While the changes to form CC-314 are relatively minor, the changes to the scheduling letter are potentially burdensome for construction companies.
There are a number of important changes in the scheduling letter for the itemized listing associated with Executive Order 11246, the law that requires federal contractors and subcontractors to provide equal opportunity regardless of certain classifications including race and sex. Construction companies undergoing a compliance review would be required to provide:
- More extensive information on each construction project occurring in the geographic area associated with the compliance review.
- Additional information on “all construction trade employees” within the relevant geographic area for the 12 months preceding receipt of the scheduling letter. In addition to current information that must be supplied such as name or employee ID, race/ethnicity, gender, and wage rates, construction companies would be required to provide job title and various forms of hours worked and rates of pay. Construction companies would also be required to provide “Trade or supervision, inspection, or onsite function.”
- Additional information on personnel activity for construction trades employees, as well as personnel activity information for “employees involved in…supervision, inspection, and other onsite functions.”
- Information on “all tests and other selection requirements” along with proof that these selection procedures were properly validated under the Uniform Guidelines on Employee Selection Procedures.
- Evidence that the company monitored personnel and employment related activities to ensure these activities had no discriminatory effect on applicants or employees.
Certain construction companies are also subject to the laws that require federal contractors and subcontractors to provide equal opportunity to individuals with disabilities and certain classes of veterans. OFCCP has proposed to expand the itemized listings associated with these laws to parallel changes made to the scheduling letter for non-construction companies. Construction companies would be required to provide:
- A more detailed assessment of personnel practices that may affect individuals with disabilities and protected veterans.
- Documentation regarding outreach and recruitment efforts for individuals with disabilities and protected veterans, as well as an evaluation of the effectiveness of these efforts.
- A description of actions taken to meet the utilization goal for individuals with disabilities along with an assessment of personnel processes that may be affecting the ability to meet the disability utilization goal.
As with form CC-257, the proposed revisions to the scheduling letter for compliance reviews of construction companies will result in increased burden on these companies. For example, during recent compliance reviews, OFCCP has routinely suggested that data concerning Foremen and other non-construction trades employees should be included in reports provided to the agency. The proposed scheduling letter explicitly incorporates this idea into the materials that are to be provided to OFCCP. Members of the public who want to comment on the proposed revisions to the scheduling letter should by April 26, 2024.
DCI will continue to monitor further developments.
