OFCCP Tweaks Scheduling Letter and Itemized Listing, but Diminishes Confidentiality Protection

The Office of Federal Contract Compliance Programs (“OFCCP”) announced that, as of July 1, 2016, it is using a new Scheduling Letter and Itemized Listing when it commences compliance reviews of federal contractors.  Although the new Scheduling Letter and Itemized Listing changes language in a number of places, most of the changes are minor and provide clarification, rather than a new substantive requirement.

A notable change, however, is that OFCCP removed language that previously promised contractors that their submissions would be treated as confidential, unless disclosure was appropriate under the Freedom of Information Act.  The previous language stated, “Rest assured that OFCCP considers the information you provide in response to this Scheduling Letter as sensitive and confidential.”

In contrast, the new language states:

Please also be aware that OFCCP may use the information you provide during a compliance evaluation in an enforcement action.  We may also share that information with other enforcement agencies within DOL, as well as with other federal civil rights enforcement agencies with which we have information sharing agreement.

Finally, the public may seek disclosure of the information you provide during a compliance evaluation.  Under current law and regulations, OFCCP is required to comply with Freedom of Information Act, the Trade Secrets Act, the Privacy Act, and the 1987 Executive Order governing the disclosure of confidential commercial information.

The other changes include:

  • Adding that OFCCP “will” notify VETS if a contractor has failed to comply with the requirement to submit its annual report on veteran hiring/workforce representation (the VETS-4212 form);
  • Splitting the affirmative action plan submissions covering veterans and individuals with disabilities into separate requests;
  • Clarifying that contractors may submit either an organizational profile or a workforce analysis (as many contractors have already been doing);
  • Stating with greater specificity that, if a contractor has failed to accomplish a particular placement goal, then it must describe the good faith efforts “to remove identified barriers, expand equal employment opportunity, and produce measurable results;” and
  • Specifically giving contractors the option to either submit data using the race and ethnic categories found on the EEO-1 survey (Hispanic or Latino, White, Native Hawaiian or Other Pacific Islander, Asian, American Indian or Alaska Native, or Two or More Races) or to use the following racial and ethnic groups: African-American/Black, Asian/Pacific Islander, Hispanic, American Indian/Alaskan Native, and White.

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