The agency did not articulate its basis for rejecting contractors’ comments.

As detailed in our prior Alert, in late November 2022, the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) proposed significant changes to its compliance review scheduling letter and accompanying itemized listing that would substantially increase the initial response burden on federal contractors selected for audit. This proposal was subject to a 60-day public comment period that closed on January 20, 2023. On April 18, 2023, OFCCP published an updated scheduling letter, which took into account―but mostly disregarded―the significant, largely critical comments it received from the contractor community in response to the version proposed in November.

There are three substantive changes of note in the updated scheduling letter:

• Promotions: OFCCP reversed its original demand for contractors to distinguish between competitive and noncompetitive promotions, while also reducing the corresponding information to be submitted, such as the identity of the employee’s current and previous supervisors as well as any accompanying change in compensation.
• Terminations: OFCCP backtracked on the requirement in the proposed scheduling letter that contractors identify the reason for employee terminations.
• Action-oriented programs: The updated scheduling letter would require contractors to “provide documentation demonstrating the development and execution of action-oriented programs designed to correct any problem areas identified pursuant to 41 CFR § 60-2.17(b),” whereas the previous proposal only would have required contractors to “provide a list identifying all action-oriented programs.”

Outside of these relatively minor adjustments, the majority of the agency’s proposed changes to the scheduling letter remain. The agency did not articulate its basis for rejecting contractors’ comments.

It remains clear that OFCCP does not appreciate the immense burden that contractors face in responding to OFCCP audits and the dramatic increase in that burden that the updated scheduling letter would impose on contractors. In fact, despite calls from contractors to correct what they deemed to be an inaccurate calculation of a contractor’s initial burden in responding to the scheduling letter, the agency actually reduced its original estimate of hours that contractors would expend on the initial response from 39 hours to 37.5 hours. And OFCCP did not heed calls from the contractor community to increase the time to respond in full to the scheduling letter from the current 30-day period.

What This Means for Contractors

By minimally altering its original proposed changes to the scheduling letter and largely ignoring contractor comments and objections, OFCCP is doubling-down on its aggressive enforcement posture of the last few years. If approved by the Office of Management and Budget, contractors will be under even greater pressure to ensure they remain current with their affirmative action compliance obligations, including the maintenance and preparation of all required documentation, to ensure they are able to timely respond in full to a scheduling letter within 30 days of receipt.

Contractors have another brief opportunity to submit any criticisms and comments to the revised scheduling letter. The comment period ends on May 17, 2023.

For More Information

If you have any questions about this Alert, please contact Christopher D. Durham, Zev L. Grumet-Morris, any of the attorneys on our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.