On August 25, 2023, OFCCP issued a new Scheduling Letter and Itemized Listing (the “Scheduling Letter”) effective the day before publication and applicable to all compliance reviews initiated on or after August 24, 2023.

OFCCP initially proposed sweeping changes to the scheduling letter in November 2022. The contractor community responded by submitting lengthy comments opposing the proposed changes.[i] The comments focused primarily on two points—(1) the OFCCP’s burden calculation, which assumed that contractors could respond to the proposed letter in a mere 39 hours, a conservative 11 hour increase from the then-current scheduling letter and (2) the fact that there was no change to the 30-day submission deadline. OFCCP rejected the vast majority of the contractor community’s comments, issuing a slightly revised draft in April 2023.[ii]

Despite additional comments opposing even this “slimmed-down” version, OFCCP adopted the April 2023 version of the proposed letter without amendment.

New Data and Information Requested in the August 2023 Scheduling Letter

Executive Order 11246

Item 7: Contractors must provide documentation “demonstrating the development and execution of action-oriented programs designed to correct any problem areas identified” pursuant to a 41 CFR §60-2.17(b) assessment.

Section 503

Item 8: Contractors must provide documentation of outreach and recruitment efforts and additional details assessing the effectiveness of those efforts, and if found to be ineffective, provide “detailed documentation describing [the contractor’s] actions in implementing and identifying alternative efforts.”

Item 11: If underutilization of individuals with disabilities is identified, contractors must provide documentation describing “the steps taken to determine whether and where impediments for equal employment opportunity exist.” Such documentation shall include an assessment of personnel processes, effectiveness of outreach and recruiting efforts.

VEVRAA

Item 12: Contractors must provide documentation of outreach and recruitment efforts and additional details assessing the effectiveness of those efforts, and if found to be ineffective, provide “detailed documentation describing [the contractor’s] actions in implementing and identifying alternative efforts.”

Support Data

Item 16: Post-secondary education institutions are now required to submit Integrated Postsecondary Education Data System (IPEDS) reports for the last three years.

Item 18: When providing promotion employment activity data, contractors must also provide "documentation that includes established policies and describes practices related to promotions." Contractors are also required to provide “the total number of promotions by gender and race/ethnicity” at the start of the prior AAP year.

Item 19: Contractors are now required to provide expanded data on compensation, including:

• Employee-level compensation data for all employees. In addition to full-time and part-time employees, contractors must provide compensation data for the following additional categories of workers: contract, per diem or day laborers, and temporary employees.
• Two snapshots of compensation data: (1) as of the date of the organizational display or workforce analysis; and (2) as of the date of the prior year’s organizational display or workforce analysis.
• For each employee in the Item 19 compensation data: (1) “relevant data on the factors used to determine employee compensation”; and (2) “documentation and policies related to the contractor’s compensation practices, including those that explain the factors and reasoning used to determine compensation (e.g., policies, guidance, or trainings regarding initial compensation decisions, compensation adjustments, the use of salary history in setting pay, job architecture, salary calibration, salary benchmarking, compensation review and approval, etc.).”

Item 21: In light of the rise in AI tools, contractors must provide "information and documentation of policies, practices, or systems used to recruit, screen, and hire, including the use of artificial intelligence, algorithms, automated systems or other technology-based selection procedures." Compliance with this provision will likely be incredibly difficult given the broad scope of the request, the type of AI tools contractors may have in place, and the quality and extent of the vendor’s documentation.

Item 22: Contractors must provide documentation that demonstrates they have fulfilled their obligation under 41 CFR 60-2.17(b)(3) to evaluate “compensation system(s) to determine whether there are gender-, race-, or ethnicity-based disparities.”

Item 23: Contractors must provide documentation on reasonable accommodation requests received during the prior AAP year, and the outcome of the requests. If the contractor received the Scheduling Letter at least six months into their AAP year, they must provide reasonable accommodation request data for at least the first six months of the current AAP year

Item 24: Contractors must provide copies of EEO policies and documents which were in place for the immediately preceding AAP year as well as the current AAP year.

Item 25: In addition to providing the most recent assessment of personnel processes, contactors must “include, at a minimum, a description of the assessment, any impediments to equal employment opportunity identified through the assessment, and any actions taken, including modifications made or new processes added, as a result of the assessment.”

Special note for colleges, universities and other contractors with “campus-like settings”: Post-secondary institutions and federal contractors with “campus-like settings” that maintain multiple AAPs, must submit the information requested in the scheduling letter for all AAPs “developed for campuses, schools, programs, buildings, departments, or other parts of your institution, or company” located in the city and state listed on the letter.

[i] FordHarrison submitted comments in opposition to both the November 2022 and April 2023 proposed scheduling letters.

[ii] For a detailed analysis of the OFCCP’s proposed changes to the Scheduling Letter, please see FordHarrison client Alerts dated November 28, 2022 and April 19, 2023.