OFCCP Scheduling Letter Series Part 5/5: Other Key Proposed Changes to the Scheduling Letter

By: Kristen Pryor and Joanna Colosimo

The proposed changes discussed below focus on OFCCP asking for additional information at the outset of a compliance review, ostensibly to provide clarity to contractors about what is expected but also creating a substantial additional burden on the contractor to develop or locate information not readily available in a single system.

The first proposed change to the itemized listing discussed here is in the form of a new Item 7, which would require contractors to provide a list identifying all action-oriented programs designed to correct any problem areas identified pursuant to 41 CFR § 60-2.17(b). This represents an additional upfront burden on an individual contractor establishment to 1) review the individual job groups for each plan and 2) create a list that indicates what action-oriented programs have been implemented that would be intended address any job group-level goals at the individual location. However, many organizations with multiple establishments take a more strategic, enterprise-wide approach to action-oriented programs. Organizations typically align specific funds for initiatives to address broad affirmative action related goals, that benefit multiple locations, thereby allowing individual locations to share the benefits of pooled initiative funding.  So, while an individual location may have undertaken some specific action-oriented programs, it is more likely in multi-establishment contractors that action-oriented programs and initiatives are undertaken at various organizational levels (e.g., enterprise, regional, functional). This new requirement would place a burden on individual locations to track down all action-oriented programs and initiatives at the various organizational levels at the outset of an audit. 

The second proposed change is a refinement to the newly proposed Items 8 and 12 (currently Items 7 and 11). These items relate to reporting on contractors’ evaluation of the “effectiveness” of their outreach and recruitment efforts under 503 (Item 8) and VEVRAA (Item 12) respectively. In its justification, OFCCP indicates the additional detail around requirements for satisfying these items is to clarify contractor confusion, including requiring contractors to assert whether they believe the totality of efforts was effective, and what actions are being taken if not. Contractors currently submit the 44(k) data, which were intended to provide information to OFCCP for the Agency to evaluate the overall effectiveness of those efforts. Unfortunately, both the Section 503 7% utilization goal that is job group agnostic and the VEVRAA hiring benchmark that changes each year are not sufficiently tied to an individual contractor’s establishment, applicant pools, and incumbency to support meaningful evaluations as to whether outreach and recruitment efforts were effective at meeting those goals. That said, while this represents an additional layer the agency is requesting upfront, this is a relatively lower burden increase than, for example, the proposed change to promotion reporting (see blog 3 in this series).

The final key proposed change this blog discusses relates to the newly proposed Item 11 (current Item 10). Contractors are currently required to submit the utilization analysis evaluating the representation of individuals with disabilities either by job group or the workforce as a whole. The proposed change would add the requirement to provide a description of steps taken to identify whether and where impediments to equal opportunity exist that may be impacting the contractor’s ability to achieve the 7% goal and any action-oriented programs implemented to address areas of opportunity. Specifically, OFCCP is requesting the contractor’s assessment of personnel processes, the results of the AAP audit, consideration of the overall outreach/recruitment effectiveness discussed above, and “any other areas that might affect the success of the AAP” along with those action-oriented programs. There are a number of reasons that a failure to achieve a 7% disability representation goal for a given job group may not be indicative of a barrier to equal opportunity, and many organizations monitor potential barriers at a corporate or enterprise level, not the individual establishment level. The burden for an individual establishment to review each job group’s results, determine whether an EEO barrier may be exacerbating the issue, and identify what programs – across the organization may be in place to address any identified barriers, would be a burden certainly higher than estimated by OFCCP. 

Stay tuned as we wait to see which of the proposed changes make it into the final scheduling letter after the notice and comment period is complete. 

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