Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On September 11, 2020, the Office of Federal Contract Compliance Programs (OFCCP) published its FY 2020 Corporate Scheduling Announcement List (CSAL).1 CSALs give contractors at least 45 days’ notice of an impending OFCCP compliance evaluation (audit). Thus, FY 2020 scheduling letters will not be sent prior to October 26, 2020. Once a contractor receives the scheduling letter, it will have 30 days to submit its Affirmative Action Program (AAP) and supporting data, but the OFCCP will grant an automatic, 30-day extension on the data portion of an audit submission as long as the contractor timely submits the non-data portion of the AAP and requests the extension prior to the initial due date. Further, it is OFCCP’s practice, at the time of this publication due to the COVID-19 pandemic, to provide an additional 30-day extension on desk audit submissions and supporting data as a matter of course.
Key highlights of the new CSAL, discussed further below, include the following:
- Accommodation and promotion focused reviews are among those identified on the CSAL (although OFCCP has not yet proposed a scheduling letter for these types of audits).2
- When selecting contractors for audit, OFCCP considered whether they had “non-technical” violations listed in the OSHA and DOL enforcement databases; this approach will presumably render employers with OSHA and wage and hour violations in recent years more likely to be selected for compliance evaluation.
- 200 construction contractors were included for audit, all of which are slated for a compliance check in this CSAL.
- Compliance evaluations of universities will cover entire campuses within a city.
- As with prior CSALs, it is not uncommon for establishments to be identified on a CSAL even when they are currently undergoing an audit or have recently completed an audit. In our experience, notifying OFCCP of the overlap typically results in administrative closure of the second compliance evaluation.
The FY 2020 CSAL includes 2,250 supply and service establishments as well as 200 construction contractors. The review types are broken down as follows: 700 Compliance Checks (including all 200 construction contractors), 500 Accommodation Focused Reviews, 500 Promotion Focused Reviews, 402 Establishment Reviews, 250 Section 503 Focused Reviews, 67 Corporate Management Compliance Evaluation (CMCE) Reviews and 31 Functional Affirmative Action Program (FAAP) Reviews. This is the first time OFCCP has included construction contractor compliance evaluations in a CSAL. In addition, the new CSAL marks the first time that the list has included Accommodation Focused Reviews and Promotion Focused Reviews, both of which are new types of compliance evaluations about which OFCCP has not yet released specific guidance. In yet another new development, the Section 503 Focused Reviews are no longer limited to contractors’ headquarters.
With respect to supply and service establishments, the OFCCP utilized the following criteria to select contractors for compliance evaluations: (1) no more than ten establishments of any parent company; (2) no more than five full compliance reviews for any parent company; (3) no more than two functional units of a company with a FAAP; (4) no more than two CMCE reviews allocated to each district office; and (5) no more than four university reviews assigned to any region. However, despite the five-compliance-review limitation, parent companies may have additional establishments scheduled for Focused Reviews and Compliance Checks.
The OFCCP notes that it “continues to focus its scheduling efforts on those contracts that may be more likely to violate OFCCP’s law,” which it has done by including establishments with “non-technical violations” that were found in the publicly available enforcement databases of the Occupational Safety and Health Administration (OSHA) and the Wage and Hour Division (WHD). Thus, contractors should note that if they recently have experienced non-technical violations falling under the purview of either OSHA or WHD, they may have a higher risk of appearing on a future CSAL.
The OFCCP selected Establishment Reviews, Promotion Focused Reviews and Compliance Checks for each district office based on highest employee count and ordered them from highest to lowest employee count as follows: (1) Establishment Reviews; (2) Promotion Focused Reviews; and (3) Compliance Checks. In contrast, the OFCCP selected establishments with the lowest employee counts for the Accommodation Focused Reviews and Section 503 Focused Reviews for each district office. This reflects a material change from prior CSALs, which limited focused reviews to contractor headquarters.
Higher education institutions are also identified in the FY 2020 CSAL for the first time. Universities are identified for “establishment review” audits. OFCCP has further clarified in online FAQs that university reviews will include the entire university campus located in a city, excluding campuses in other cities, medical schools, and affiliated hospitals.3
Finally, OFCCP included a reminder that it “does not purge unscheduled cases from prior lists before releasing a new scheduled list,” meaning that contractors that appeared on prior CSALs but not on the current CSAL should still expect to be audited.
Federal contractors should review the CSALs to identify any facilities and subsidiaries that may be included and take necessary steps to ensure that affirmative action plans are compliant. Further, contractors should determine whether they need to take advantage of the 30-day extension, and, if so, promptly submit the extension request along with the non-data portion of the AAP. Those contractors selected for Accommodation Focused Reviews or Promotion Focused Reviews also should monitor the OFCCP for promised guidance regarding these types of reviews.
1 After the CSAL was published, OFCCP acknowledged that the published list did not comply with its own cap of five establishment reviews, excluding focused reviews and compliance checks. OFCCP published an updated version of the CSAL on September 14, 2020, in which it corrected this error. The error only impacted the type of review noted on the CSAL, but did not otherwise impact the establishments identified for audit. According to OFCCP, the current CSAL correctly represents the scheduling list and the methodology.
2 OFCCP conducts several different types of compliance reviews. An establishment review is an in-depth audit of a contractor’s compliance with all of the OFCCP rules. A Corporate Management Compliance Evaluation is an establishment review in which the OFCCP is specifically looking for the existence of barriers to advancement into mid-level and senior corporate management. Focused reviews are on-site reviews focused on one or more components of the contractor’s organization or one or more aspects of the contractor’s employment practices, such as affirmative action for individuals with disabilities or veterans, promotional activity, or reasonable accommodations. A compliance check is used to determine whether a contractor is maintaining certain required records.
3 https://www.dol.gov/agencies/ofccp/faqs/scheduling-lists#Q13 (“What is covered in a University Review?”).