As we previously reported, when OFCCP released its latest Corporate Scheduling Announcement List (“CSAL”) in September 2020, it identified contractors selected for the agency’s new reviews focused on promotions and accommodations.  Little was known about the reviews, although the agency provided some additional detail later that month when it launched two websites devoted to the new focused reviews.

However, the agency was not able to initiate such focused reviews as it had not proposed or received approval of scheduling letters for the reviews.  The agency has now begun that process, submitting to the Office of Management and Budget (“OMB”) proposed scheduling letters for the two new reviews.

The proposed scheduling letters must still be approved by the OMB before OFCCP may use them to schedule the new focused reviews.  Given the upcoming change in Administration, it is difficult to predict when, or even if, these letters will be approved, and what changes may be implemented in any final versions.  However, contractors selected for these reviews should be familiar with and follow developments regarding these letters as they provide the first real sense of the burden associated with such audits.

Below we summarize some of the key components of the proposed letters.  As discussed, the proposed letters seek information from contractors that go well beyond the stated focused purpose of the reviews and differ from the narrow scope of other focused review scheduling letters.  From this it appears these new focused reviews may be more like traditional establishment reviews with some additional lines of inquiry.  We will continue to monitor and report on this and other noteworthy OFCCP developments.

Proposed Accommodations Focused Review Scheduling Letter

OFCCP’s website on Accommodations Focused Reviews states that these reviews will look at review “contractor’s policies and procedures related solely to religious and disability accommodations.”  However, the scheduling letter seeks a plethora of materials and information that go well beyond this narrow stated scope.  Notable documents and information the proposed letter seeks to require contractors to submit, include:

  • A copy of their Executive Order 11246, Section 503 and VEVRAA AAPs;
  • Analyses of utilization of individuals with disabilities;
  • Information on contractors’ Executive Order 11246 affirmative action goals and progress toward goals;
  • Applicant, hiring, promotion and termination data. In addition to promotions data, contractors must include “a definition of ‘promotion’ as used by [their] company and the basis on which [the promotions] were compiled (e.g. promotions to the job group, from and/or within the job group, etc.).”
  • Compensation data; and
  • Copies of reasonable accommodation policies and documentation of any accommodation requests received and their resolution.

Proposed Promotions Focused Review Scheduling Letter

Similarly, the proposed Promotions Focused Review Scheduling Letter seeks information that goes beyond OFCCP’s prior statements concerning the scope of these new reviews.  On its website, OFCCP informed contractors these reviews would examine “contractor data, policies, and procedures related to promotions to ensure that federal contractors are meeting their equal employment opportunity obligations.”  However, like the proposed accommodations focused review scheduling letter, the proposed promotions focused review scheduling letter seeks to have contractors submit data and documents that go well beyond the stated focus of the review, such as hiring and termination data, and detailed compensation data.

Check back here for more information on the proposed scheduling letters and new accommodations and promotions focused reviews.

Print:
Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Guy Brenner Guy Brenner

Guy Brenner is a partner in the Labor & Employment Law Department and leads the Firm’s Washington, D.C. Labor & Employment practice. He is head of the Government Contractor Compliance Group, co-head of the Counseling, Training & Pay Equity Group and a member…

Guy Brenner is a partner in the Labor & Employment Law Department and leads the Firm’s Washington, D.C. Labor & Employment practice. He is head of the Government Contractor Compliance Group, co-head of the Counseling, Training & Pay Equity Group and a member of the Restrictive Covenants, Trade Secrets & Unfair Competition Group. He has extensive experience representing employers in both single-plaintiff and class action matters, as well as in arbitration proceedings. He also regularly assists federal government contractors with the many special employment-related compliance challenges they face.

Guy represents employers in all aspects of employment and labor litigation and counseling, with an emphasis on non-compete and trade secrets issues, medical and disability leave matters, employee/independent contractor classification issues, and the investigation and litigation of whistleblower claims. He assists employers in negotiating and drafting executive agreements and employee mobility agreements, including non-competition, non-solicit and non-disclosure agreements, and also conducts and supervises internal investigations. He also regularly advises clients on pay equity matters, including privileged pay equity analyses.

Guy advises federal government contractors and subcontractors all aspects of Office of Federal Contract Compliance Programs (OFCCP) regulations and requirements, including preparing affirmative action plans, responding to desk audits, and managing on-site audits.

Guy is a former clerk to Judge Colleen Kollar-Kotelly of the US District Court of the District of Columbia.