The OFCCP has posted a new Corporate Scheduling Announcement List (CSAL) on their website. According to the agency’s published methodology, they specifically “selected federal contractors and subcontractors that are required to maintain an Affirmative Action Program (AAP) but did not complete their mandatory annual certification in the OFCCP Contractor Portal as of December 1, 2022.”
In case you missed it, the OFCCP implemented a new process by which federal contractor employers are required to annually certify that they do in fact prepare AAPs as required by the agency’s regulations. The rollout was less than smooth and the first certification deadline was extended a few times, but the system generally works and contractors had until December of last year to complete their first certification.
Note that the OFCCP has not yet opened the Contractor Portal to construction contractors for certification, so there are no construction audits in the new list. They also gave colleges and universities a break this time around and removed them from the selection list.
Of the 500 entities listed as selected (but not yet scheduled) for an audit, 452 (90%) are regular, good ol’ “establishment” reviews. An additional 24 functional units have been tagged for a “FAAP” review. And the other 24 are designated as Corporate Management Compliance Evaluations (CMCEs).
The agency also limited the audit list to establishments with at least 200 employees (according to 2020 EEO-1 data). In fact, the OFCCP selected establishments with the highest employee counts in each district office. As for functional units, the agency chose the four units in each region with the highest employee counts. They also limited the number of audits for each parent company to no more than four (4).
So the agency is going after large sets of data that, according to their information, have not been “tested” by the AAP process. To the OFCCP, that is like a fresh, juicy steak to a caged tiger.
Note that the current administration has abandoned the previous approach of more “focused” audits taking deeper dives into specific areas such as disability issues. Every audit is now a “full” audit in which the agency will determine compliance with all three authorities (E.O. 11246, Section 503, and VEVRAA) as applicable. The agency is looking to tick every possible technical compliance box, and will look for evidence of potential discrimination wherever it can be found.
Contractors with functional affirmative action programs used to have a completely separate audit selection process which was, to be honest, a bit of a “black box.” No one could really tell what methodology was being used to select FAAPs for review. But now functional units have been pulled into the larger audit selection process, so the published CSAL is now a one-stop shop for FAAP agreement holders.
And remember that just because an establishment is listed in the CSAL for OFCCP’s Fiscal 2023 does not necessarily mean the agency will actually audit you in FY2023. They generally work their way through prior lists first, but each district office works at its own pace, so when the agency starts dipping into a new list will vary from office to office. The agency has been known to initiate audits from lists as old as ten years!
Check The List
In case you find yourself thinking, “We certified, so we’re good to go,” we are going to encourage you to download the list and check it anyway. If you do find one or more entities on the new CSAL that you don’t think should be there, reach out to the agency and let them know. It could be that you certified but the AAP-VI platform didn’t record it or didn’t record it correctly. Given that this is a new technology platform for a federal agency not known for its cutting-edge technology, that is a distinct possibility. You can also request an administrative closure if the entity selected is already scheduled for an audit, has an audit currently underway, or is within the 24-month “grace period” afforded after an audit is completed.
Given that the agency relied on 2018 EEO-1 data to populate the information in the AAP-VI Contractor Portal and appear to be relying on 2020 EEO-1 data to identify contractors and establishments for this CSAL, it is not at all out of the realm of possibility that the agency has selected an establishment that has been closed or does not “belong” to your organization at all!
Trust us; check the list.
Whether or not the OFCCP will generate a second CSAL in FY2023 will depend on how quickly they move through their previous CSALs. But considering that they are going after organizations they believe have not even prepared AAPs, these audits could take longer than usual as the agency provides “technical assistance” and hunts for evidence of discrimination.
If your organization is supposed to be preparing AAPs but has yet to do so, there is no time like the present to rectify that situation, especially if you’ve been tagged in this CSAL. Don’t wait for the OFCCP to actually audit you and hand them an automatic violation. And if you still haven’t certified, think about going ahead and getting that out of the way, preferably after your AAPs are in place!
And if you need any help or have any questions about this or any other OFCCP compliance-related matter, feel free to reach out to us at BCGi@Biddle.com.