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On May 20, 2022, the Office of Federal Contract Compliance
Programs (OFCCP) published its FY 2022 Corporate Scheduling
Announcement List (CSAL) for supply and service contractors. OFCCP
has stated that it will immediately begin to send out scheduling
letters to some of the contractors on the new list. This is a
change from the past when OFCCP would wait at least 45 days from
publication of the list before beginning audits. See U.S. Dep’t of Labor, Office of Federal Contract
Compliance Programs, Directive (DIR) 2022-02.
Contractors should note, however, that it often takes OFCCP several
years to work through a scheduling list. Therefore, while some
contractors may have already received scheduling letters, others
may not get their letters until sometime in 2023 or possibly even
2024.
In addition to dispensing with a grace period following
publication of a CSAL, OFCCP also curtailed the granting of
extensions in connection with audits. Also, while audits were
always commenced in the past through delivery of a certified
letter, OFCCP now regularly uses email for this purpose.
Contractors should keep an eye on their mail (regular and email)
and be prepared to submit full responses to an audit request within
30 days of receiving the scheduling letter.
The CSAL includes 400 establishments encompassing 309 companies,
and it includes 376 establishment reviews, 12 Corporate Management
Compliance Evaluation reviews, and 12 Functional Affirmative Action
Program (FAAP) reviews. OFCCP has discontinued the use of Focused
Reviews, which represented a significant portion of audits during
the Trump administration.
OFCCP is still working through its 2021 Construction Scheduling
List, with some of the construction audits now proceeding to actual
(non-virtual) agency visits to construction sites for inspections
and to conduct interviews. At this time, we have no reliable
information as to when to expect a new construction scheduling
list.
OFCCP also published its methodology for selecting
contractors for audits. For the 2022 CSAL, OFCCP used the
USAspending database to identify contracts and subcontracts of
$50,000 or more. The agency then prioritized the contractors to
audit by focusing on the industries that have experienced
employment growth during the pandemic. To analyze hiring activity,
the agency utilized the Job Offers and Labor Turnover Survey,
commonly referred to as JOLTS, as provided to the public by the
U.S. Bureau of Labor Statistics (BLS). OFCCP states that
“[u]sing neutral criteria, OFCCP developed and implemented a
statistical methodology to conduct predictive modeling for the
purpose of selecting federal contractor and subcontractor
establishments for this scheduling list from among the industries
identified .. This model incorporated an analysis of EEO-1
Component 1 data to identify instances in which representation of
demographic groups within EEO-1 job categories differs from
industry and local labor market averages.” The OFCCP’s
methodology demonstrates the importance of preparing accurate EEO-1
reports and confirming that those reports accurately reflect the
employer’s diversity.
In putting together the list of potential audit targets, the
agency used the following criteria to finalize establishment and
corporate management compliance evaluation (CMCE) reviews:
- OFCCP did not include more than four establishments of any
parent company. - OFCCP selected two CMCE reviews per region using the same
methodology as establishment reviews. - For FAAP reviews, OFCCP selected two functional units with the
highest employee count in each region. This resulted in a smaller
number of FAAP reviews than in the past.
Not surprisingly, given the timing of this CSAL, OFCCP did not
use data from its new Contractor Portal as a criterion for
selection. We assume that data from the Contractor Portal will be
used when OFCCP prepares its next scheduling list.
The published methodology also discusses the agency’s
intention to coordinate multiple audits as follows:
Initially, OFCCP assigned District Office codes and regions to
each establishment or unit based on the postal address. Where a
parent company has three or four establishments on the scheduling
list, OFCCP reassigned these compliance reviews to the same region
so that both the agency and the contractor can engage in these
reviews in a coordinated manner.
Federal contractors and subcontractors should carefully review
the CSAL for facilities and subsidiaries within their organizations
and confirm affirmative action plans for those facilities are
promptly prepared with extra care. In addition, federal contractors
should review the compliance practices at those facilities and log
and assess recruitment and outreach practices for year-over-year
efficacy.
Companies that believe that they have been included on the CSAL
by mistake are advised to contact OFCCP immediately to try to
correct the error rather than wait until they receive a scheduling
letter. However, because the best approach may vary depending on
the circumstances, this is an issue that should be discussed with
legal counsel.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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