May 19, 2019

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OFCCP Proposes Revised Scheduling Letter for Compliance Checks

This is the second in our series of blogs on OFCCP’s proposed changes to its various scheduling letters.

Our previous publication focused on the Agency’s new Section 503 and VEVRAA Focused Reviews.  In addition to rolling out the new Focused Reviews, OFCCP has also revived the Compliance Check, which has not been used in recent years. There were 500 Compliance Checks on OFCCP’s recent CSAL list, published in March. Intended to evaluate whether contractors have maintained records consistent with their regulatory obligations, Compliance Checks are expected to be the least invasive of the OFCCP reviews and are “more limited in scope than a compliance review.”

Nevertheless, just as contractors began to acquaint themselves with the requirements under the Compliance Check scheduling letter, OFCCP has proposed a new version of the letter.

Though the existing and proposed letters are quite similar, the proposed letter contains small, but meaningful, changes that contractors should not overlook.

  • Item 1: While the existing letter requests “AAP results for the preceding year,” the new letter asks for “[w]ritten AAPs” prepared in accordance with EO 11246, Section 503, and VEVRAA. In both versions, the regulatory cites refer to contractors’ record-keeping obligations, and a narrow reading suggests that contractors may not be required to submit quantitative analysis. However, the spirit of the request may be broader. OFCCP’s expansion of the request in the proposed scheduling letter to include “the written AAP,” rather than “results of the preceding year” seemingly provides additional insight into what OFCCP may be expecting with this item. However, since OFCCP has not used Compliance Checks in the past several years, what the current Agency expects – both under the existing and proposed scheduling letters – remains to be seen.
  • Item 3: Importantly, if the proposed letter is approved, OFCCP will require contractors to submit “[r]equests made for accommodations for persons with disabilities, whether the requests were denied or granted.” This differs from the language in the existing letter, which simply asks for examples of accommodations provided. Given the Agency’s heightened interest in Section 503, the expansion of this request comes as no surprise.

The second item, which requests examples of job advertisements, including listings with state employment services, remains unchanged, as is the option to either send the requested information to OFCCP or make it available on-site for OFCCP to review.

OFCCP is reporting it estimates it will take contractors

"approximately 2 hours to retrieve and supply the requested information"

in the revised compliance check letter.

Again, we encourage you to review this scheduling letter and, if you would like to, provide comments by June 11th.

Stay tuned for our next blog in this series which will discuss proposed changes to the establishment review scheduling letter.

Jackson Lewis P.C. © 2019

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About this Author

Laura Mitchell, Jackson Lewis, Management Representation lawyer, Contractual Drafting Attorney
Principal

Laura A. Mitchell is a Principal in the Denver, Colorado, office of Jackson Lewis P.C. She represents management exclusively in all areas of employment law, focusing on affirmative action and government contractor compliance.

Ms. Mitchell is a Principal in the firm’s Affirmative Action and OFCCP Defense practice group, representing government and non-government contractors in Office of Federal Contract Compliance Programs (OFCCP) matters, preparing for and defending OFCCP audits, and counseling employers on issues stemming...

303-225-2382
Associate

Suzanne Donnelly Corwin is an Associate in the Denver, Colorado, office of Jackson Lewis P.C. Ms. Corwin’s practice focuses on equal employment opportunity and affirmative action. She assists clients with developing affirmative action plans and counsels them on compliance with Office of Federal Contract Compliance Programs (OFCCP) regulations. She also defends clients during OFCCP investigations and audits.

While attending law school, Ms. Corwin was an Executive Comment and Note Editor on the New England Law Review and was named a New England Scholar for excellence in academic achievement. She also served as an honors judicial intern at Suffolk Superior Court in Boston, Massachusetts. Upon graduation, Ms. Corwin clerked for the Justices of the New York State Supreme Court, Appellate Division, Third Department in Albany, NY. 

303-892-0404
Christopher T. Patrick employment lawyer Jackson Lewis
Principal

Christopher T. Patrick is a Principal in the Denver, Colorado, office of Jackson Lewis P.C. His practice focuses equal employment opportunity, including proactive pay equity analyses, compliance with regulations promulgated by the Office of Federal Contracts Compliance Programs (OFCCP), statistical analyses of potential discrimination in employment practices, and defending employment practices in OFCCP audits and investigations.

While attending law school, Mr. Patrick served as on the Editorial Board for The Journal for the National Association of...

303-876-2202
Lisa Marsh Employment Attorney
Associate

Lisa B. Marsh is an Associate in the Denver, Colorado, office of Jackson Lewis P.C. She represents management exclusively in all areas of employment law, focusing on affirmative action and EEO.

Ms. Marsh assists clients with the drafting of affirmative action plans, representing government and non-government contractors in Office of Federal Contract Compliance Programs (OFCCP) matters, preparing for and defending OFCCP audits, and counseling employers on issues stemming from OFCCP regulations.

While attending law school, Ms. Marsh served as an...

303-876-2216