Department of Labor's Office of Federal Contract Compliance Programs Proposes Significant Changes to Compliance Review Scheduling Letter and Itemized Listing

• Jurisdiction: United States,Federal
• Citation: Vol. 1 No. 2
• Publication year: 2023
• topic: Contracts,Labor Law,Federal,Employment Law

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Christopher D. Durham and Zev L. Grumet-Morris ^*

In this article, the authors summarize key proposed changes requested by the Department of Labor for documents that initiate audits by the Office of Federal Contract Compliance Programs.

The U.S. Department of Labor's Office of Federal Contract Compliance Programs (OFCCPs) has submitted a request ¹ to the Office of Management and Budget (OMB) for reauthorization of its compliance review scheduling letter and accompanying itemized listing, ² that is, the documents that initiate OFCCP audits. The proposed changes, which OFCCP maintains will better facilitate its review of contractor establishments, would substantially increase the initial response burden on contractors selected for audit in a number of areas. The changes also reflect OFCCP's continued heightened focus on enforcement nearly two years into the Biden administration, particularly with respect to contractor compensation, personnel selection decisions, and outreach and recruitment. This article summarizes the key proposed changes and the impact on contractors.

Expanded Compensation Submission

The proposed revisions to the itemized listing substantially expand the compensation-related data and information that contractors would be required to provide at the outset of an audit, as discussed below.

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Prior Year Compensation Data

Currently, contractors are required only to provide current year compensation data. The revised itemized listing would also require submission of prior year compensation data. In its justification ³ for the changes, OFCCP notes that while the agency has the authority to review employment activity data covering the two years preceding the initiation of the compliance review, its existing practice is to request this data only after a desk audit reveals a potential disparity. The agency perceives the current practice as an "inefficient" approach and asserts that "reviewing more data during the desk audit will allow OFCCP to better identify whether there is systemic pay discrimination happening at a contractor's workforce and whether the potential discrimination was ongoing prior to the first snapshot."

Compensation Data for Staffing Agency Employees

The proposed revisions would require contractors to provide two years of compensation data for "temporary employees, including those provided by staffing agencies" (emphasis added). This would also include data regarding factors that impact compensation of such...