By: Benjamin Kerner and Haley Fisk
On June 3rd, 2024, the Office of Federal Contract Compliance Programs (OFCCP) released new FAQs for Supply and Service Scheduling Letter and Itemized Listing, providing guidance to assist contractors that are scheduled for review and are responding to the itemized listing of OFCCP’s scheduling letter. The itemized listing includes 26 items that employers must respond to at the start of an OFCCP compliance review.
Of particular interest, there are new FAQs for Item 21, which has raised many questions since it was added to the revised scheduling letter 2023. Item 21 states that contractors are required to:
“Identify and provide information and documentation of policies, practices, or systems used to recruit, screen, and hire, including the use of artificial intelligence, algorithms, automated systems or other technology-based selection procedures.”
There are four new FAQs that pertain directly to Item 21, and one regarding artificial intelligence (AI) and Equal Employment Opportunity (EEO), all of which provide insight regarding OFCCP’s expectation beyond the language present within the scheduling letter and supporting documentation.
FAQs #12 and 13 - OFCCP clarifies what should be included within Item 21.
OFCCP expects contractors to “provide documentation on all policies, practices, or systems they use to recruit, screen, and hire,” noting that AI-based selection procedures are only one example of these types of policies, practices, and systems.
While OFCCP has a demonstrated interest in the use of technology in employment decisions, according to these FAQs, Item 21 is designed to evaluate the full scope of a contractor's selection process and is not limited to technological methods for doing so. If federal contractors have been responding to this item with “Not Applicable” because they did not use AI or a specific digital program in their selection decisions, OFCCP has indicated that this response is no longer acceptable.
FAQ #14 - OFCCP outlines the type of AI-related documentation that should be submitted to respond to Item 21. The agency list includes following:
- The names of software used
- The names of vendors used to supply these systems
- A written description of how the technology is used
- A written description of the general criteria evaluated by AI
- A list of who has access to and uses the technology
- A written description of the impact the technology has on the recruitment and selection process, or stages of the process
FAQ #15 – OFCCP clarifies that contractors must be prepared to provide documentation on the use of AI in third-party products and services. If a contractor utilizes a third-party for any part of the employment selection process, the contractor must be able to provide information as described in FAQ #14 on the third party’s employment tools, policies, and practices. This is based on OFCCP’s expectation that contractors ensure any third-party providers comply with OFCCP’s requirements in employment decision making.
FAQ #16 – This FAQ states that OFCCP discusses the use of AI in employment processes in the agency’s published guidance. OFCCP expects this guidance will help mitigate the potentially harmful impact of using such technologies in employment decision making.
As a reminder, FAQs are sub-regulatory guidance and not subject to notice and comment. But these new FAQs make clear that OFCCP expects that even though contractors may not use AI software or advanced technology tools to make selection decisions, OFCCP is still very much interested in the policies, practices, and procedures that underscore an organization’s selection decisions.
DCI will continue to monitor developments as they occur.
