By: Kristen Pryor and Zach Olsen
Some of the Office of Federal Contract Compliance Program’s (OFCCP) most notable proposed changes to its supply and service (S&S) scheduling letter relate to the new requests for selection procedure documentation and more granularized reporting on promotions and terminations. In this blog, we will specifically consider the proposed new request for recruitment and selection procedure documentation and the proposed expansion of reporting requirements on personnel activity.
This is DCI’s third installment in its blog series on OFCCP’s proposed revisions to its S&S scheduling letter. The first and second installments can be found below:
Request for Documentation on Selection Procedures (New proposed Item 19)
OFCCP’s new request for documentation of recruitment and selection procedures includes a requirement mandating contractors submit the following at desk audit stage:
“Documentation of 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.”
Note that this new item would require an establishment to submit documentation describing the policies and practices in place for recruiting, screening, and hiring employees. OFCCP does not define what would qualify as "documentation" of policies and practices, however, in its justification for this proposed item, OFCCP states that there are an increasing number of contractors adopting automated, technology-based selection and screening tools in recruitment. The agency focused their argument for this item on those tools, stating “use of these technologies may lead to instances of screening or selection bias, for example, assigning lower ratings to minority or women candidates in a screening process.” Individuals with disabilities are also at risk due to the use of these technologies, according to the agency.
OFCCP’s interest in this topic is not surprising. Speaking at the American Bar Association (ABA) Employment Law Conference in November 2022, OFCCP’s former Chief of Staff Sania Khan stated the agency already has the authority it needs to evaluate the use of artificial intelligence (AI) or other algorithm-based tools in contractor’s personnel selection processes. Ms. Khan indicated that the agency is in a “learning” posture regarding these tools, seeking to better understand how they are being used in organizations, under what circumstances, and with what monitoring or oversight.
OFCCP is not the only governmental entity expressing concern with the use of new technologies in the selection process. In 2021, the Equal Employment Opportunity Commission (EEOC) announced an initiative to “ensure that the use of software, including artificial intelligence (AI), machine learning, and other emerging technologies used in hiring and other employment decisions comply with the federal civil rights laws...” The White House has also released a Blueprint for an AI “Bill of Rights” focused on guiding the development of AI and other related technologies to protect the rights of workers, patients, consumers, and students. Additionally, state and local governments have increasingly sought to regulate these tools. One of the most prominent examples of this is New York City’s Local Law 144 on Automated Employment Decision Tools.
It is unclear exactly what documentation and level of detail OFCCP would consider sufficient in this regard. Depending on the size of the establishment and the variability in recruitment and selection procedures used for positions in scope, this could be an extremely burdensome new item. For example, consider the amount of time and effort required to collect, summarize, and submit documentation on the policies and practices related to recruitment and selection for all positions at a contractor’s headquarters establishment—especially at the initial submission stage of an audit. While DCI expects some modification and/or clarification of this requirement if it is adopted, it seems likely for this requirement to be approved in some form in the final, revised scheduling letter given the increased interest in the use of technology in employment decisions.
Request for Information on Promotions and Terminations (New proposed Item 20)
OFCCP is also proposing revisions to Item 18 in the current scheduling letter. The current version of Item 18 requires contractors to provide “data on [its] employment activity (i.e. applicants, hires, promotions, and terminations) for the immediately preceding AAP year and, if [a contractor is] six months or more into [its] current AAP year when [the contractor] receive[s] this listing, provide the information…for at least the first six months of the current AAP year.” Contractors can submit this data by AAP job group or by job title. In the revised version of Item 18 (renumbered in the proposed scheduling letter as Item 20), OFCCP proposes significant modifications to the existing obligations for contractors’ reporting on promotions, terminations, and prior year employment numbers.
The current scheduling letter requires contractors to include the number of promotions by gender and race/ethnicity in each job group or job title. If promotions are presented by job title, then department information and job group must be included, as well. In its proposed Item 20, OFCCP seeks to require the following (new requirements are underlined):
“c. Promotions: For each job group or job title, provide the total number of promotions by gender and race/ethnicity, and identify whether each promotion was competitive or non-competitive. Provide documentation that includes established policies and describes practices related to promotions in the submission. Also include the previous supervisor, current supervisor, previous compensation, current compensation, department, job group, and job title from which and to which the person(s) was promoted.”
This additional reporting would substantially increase the burden on contractors when preparing their initial audit submissions. First, systems of record do not necessarily include indicators to differentiate competitive and non-competitive promotions. Many employers would need to conduct manual research to determine whether promotions were competitive or non-competitive. Additionally, compensation changes resulting from promotions are often documented separately from promotions, which may make it difficult to obtain old and/or new compensation amounts. Finally, the documentation that new Item 20 requires on policies and practices may be difficult to gather since employers often have a variety of systems and procedures used to make promotion decisions.
The current scheduling letter requires contractors to include the number of terminations by gender and race/ethnicity in each job group or job title. If terminations are presented by job title, then department information and job group must be included. In its proposed Item 20, OFCCP seeks to require the following (new requirements are underlined):
“d. Terminations: For each job group or job title, provide the total number of employee terminations, broken down by reason(s) for termination (e.g., retirement, resignation, conduct, etc.) including gender and race/ethnicity information for each. When presenting terminations by job title, also include the department and job group from which the person(s) terminated.”
Notably, the agency is seeking the actual reason for termination rather than simply reporting totals on persons leaving the organization. While contractors may have this information available in their systems, it provides OFCCP with a significant level of disaggregated data on the types of terminations that have occurred. It is not clear whether OFCCP will then reaggregate terminations and conduct analyses by voluntary or involuntary status, and it is not clear whether the agency or the contractor will be responsible for making the determination on which terminations would be categorized as voluntary or involuntary.
Prior Year Incumbency Data
Finally, the agency has added a new section in Item 20, which requests the following:
- For each job title or job group, provide the total number of employees, by gender and race/ethnicity, as of the start of the immediately preceding AAP year.
This is essentially a request for the Job Group Analysis for the immediately preceding AAP year. According to OFCCP, this information is needed to “create accurate pools for the promotion and termination impact ratio analyses…” While this practice has become routine during compliance reviews, the new proposed requirement will require contractors to provide this information at the time data is initially submitted rather than by a follow-up request by the agency.
If approved, the changes discussed above would place significant new burdens on contractors. There would be burdens associated with providing extensive new documentation, as well as the reporting and assessment of promotion and termination data. An important question is whether the cost is worth the benefit, as OFCCP rarely finds discrimination with regard to either promotions or terminations. While the agency more often finds potential discrimination regarding hiring, the amount of documentation that OFCCP is requesting would be overwhelming for both contractors and the agency.
Stay tuned for the rest of this blog series!