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 May 20, 2022, the Office of Federal Contract Compliance Programs (OFCCP) published its FY 2022 Corporate Scheduling Announcement List (CSAL) for supply and service contractors. OFCCP has stated that it will immediately begin to send out scheduling letters to some of the contractors on the new list. This is a change from the past when OFCCP would wait at least 45 days from publication of the list before beginning audits. See U.S. Dep’t of Labor, Office of Federal Contract Compliance Programs, Directive (DIR) 2022-02. Contractors should note, however, that it often takes OFCCP several years to work through a scheduling list. Therefore, while some contractors may have already received scheduling letters, others may not get their letters until sometime in 2023 or possibly even 2024.
In addition to dispensing with a grace period following publication of a CSAL, OFCCP also curtailed the granting of extensions in connection with audits. Also, while audits were always commenced in the past through delivery of a certified letter, OFCCP now regularly uses email for this purpose. Contractors should keep an eye on their mail (regular and email) and be prepared to submit full responses to an audit request within 30 days of receiving the scheduling letter.
The CSAL includes 400 establishments encompassing 309 companies, and it includes 376 establishment reviews, 12 Corporate Management Compliance Evaluation reviews, and 12 Functional Affirmative Action Program (FAAP) reviews. OFCCP has discontinued the use of Focused Reviews, which represented a significant portion of audits during the Trump administration.
OFCCP is still working through its 2021 Construction Scheduling List, with some of the construction audits now proceeding to actual (non-virtual) agency visits to construction sites for inspections and to conduct interviews. At this time, we have no reliable information as to when to expect a new construction scheduling list.
OFCCP also published its methodology for selecting contractors for audits. For the 2022 CSAL, OFCCP used the USAspending database to identify contracts and subcontracts of $50,000 or more. The agency then prioritized the contractors to audit by focusing on the industries that have experienced employment growth during the pandemic. To analyze hiring activity, the agency utilized the Job Offers and Labor Turnover Survey, commonly referred to as JOLTS, as provided to the public by the U.S. Bureau of Labor Statistics (BLS). OFCCP states that “[u]sing neutral criteria, OFCCP developed and implemented a statistical methodology to conduct predictive modeling for the purpose of selecting federal contractor and subcontractor establishments for this scheduling list from among the industries identified …. This model incorporated an analysis of EEO-1 Component 1 data to identify instances in which representation of demographic groups within EEO-1 job categories differs from industry and local labor market averages.” The OFCCP’s methodology demonstrates the importance of preparing accurate EEO-1 reports and confirming that those reports accurately reflect the employer’s diversity.
In putting together the list of potential audit targets, the agency used the following criteria to finalize establishment and corporate management compliance evaluation (CMCE) reviews:
- OFCCP did not include more than four establishments of any parent company.
- OFCCP selected two CMCE reviews per region using the same methodology as establishment reviews.
- For FAAP reviews, OFCCP selected two functional units with the highest employee count in each region. This resulted in a smaller number of FAAP reviews than in the past.
Not surprisingly, given the timing of this CSAL, OFCCP did not use data from its new Contractor Portal as a criterion for selection. We assume that data from the Contractor Portal will be used when OFCCP prepares its next scheduling list.
The published methodology also discusses the agency’s intention to coordinate multiple audits as follows:
Initially, OFCCP assigned District Office codes and regions to each establishment or unit based on the postal address. Where a parent company has three or four establishments on the scheduling list, OFCCP reassigned these compliance reviews to the same region so that both the agency and the contractor can engage in these reviews in a coordinated manner.
Federal contractors and subcontractors should carefully review the CSAL for facilities and subsidiaries within their organizations and confirm affirmative action plans for those facilities are promptly prepared with extra care. In addition, federal contractors should review the compliance practices at those facilities and log and assess recruitment and outreach practices for year-over-year efficacy.
Companies that believe that they have been included on the CSAL by mistake are advised to contact OFCCP immediately to try to correct the error rather than wait until they receive a scheduling letter. However, because the best approach may vary depending on the circumstances, this is an issue that should be discussed with legal counsel.