OFCCP Archives - Biddle Consulting Group News

New 2020 OFCCP CSAL Has Been (Quietly) UPDATED

September 17, 2020 By Matt Nusbaum

At some point since the OFCCP published the new 2020 Corporate Scheduling Announcement List (CSAL) for supply and service contractors last Friday, September 11, the agency has since made significant, substantive changes to the list of 2,250 establishments and functions selected for audit. While some of the updates are innocuous and healthy, like updating erroneous data entry in fields like company name, other changes are more concerning.

Specifically, 80 of the establishments and functions on the list now have a different review type than originally published:

1 compliance check changed to a promotion focused review;
39 establishment reviews changed to a promotion focused review; and
40 promotion focused reviews changed to an establishment review.

If you haven’t checked the new 2020 CSAL yet, the version on the OFCCP website is (for now) current. If you have already checked it, check it again and make sure the audit you’re planning for is still the audit that will actually be scheduled!

Notably, and despite the agency’s transparency directive, the OFCCP has not provided any notice of these changes to the recently published CSAL. After bringing the issue to the OFCCP’s attention, the agency says a ‘stakeholder message’ is now forthcoming.

OFCCP Guidance re Non-Binary Employee Reporting

September 15, 2020 By Matt Nusbaum

The OFCCP has quietly issued guidance in the form of a “Frequently Asked Question” (FAQ) regarding how federal contractor employers should handle reporting employees who self-identify in something other than the binary sex options for AAP purposes. While the guidance is certainly a step in the right direction, BCGi recommends that contractors not make any changes to their AAP reporting just yet.

Federal contractors are still required to annually report on the demographics of their workforce through the EEO-1 reporting scheme (though the 2019 EEO-1 reports have been delayed). And while the EEOC did provide updated guidance for reporting non-binary employees on the now defunct “Component 2” compensation report, the agency has yet to issue similar guidance for the surviving Component 1. As a result, contractors are still required to report non-binary employees in one of the two binary options for EEO-1 purposes.

Logistically, it should be easier for federal contractors to use the same sex ID information for AAP purposes. Attempting to rely on certain data for one purpose and different data for another is likely to introduce errors into one or both. And although there should be disconnects between EEO-1 and AAP reports, adding more disconnects is likely to just lead to more frustrating conversations in OFCCP compliance reviews.

Furthermore, the OFCCP’s guidance allows contractors to exclude non-binary employees from “the gender-based analyses required by OFCCP’s regulations.” However, contractors must still “include” such employees in their AAPs. How? The agency is silent there, but likely the same way the agency pushes contractors to report applicants with “unknown” sex or race/ethnicity and/or the way contractors are required to annotate the Workforce and Job Group Analyses to indicate employees who report in/out of the plan. In other words, by overhauling all of the required AAP reports and analyses.

While an overhaul of OFCCP-required reporting is likely necessary, contractors should be wary of making major changes based on sub-regulatory guidance that does not have the force and effect of law, and that can be changed on a whim. Vendors will likely treat such changes as a customization requiring additional fees unless and until the OFCCP’s regulations are officially updated (a relatively lengthy process that, to our knowledge, has not yet even begun).

So although we applaud the OFCCP in taking an important step forward, we have to recommend against making any changes to current AAP reports and analyses. Fingers crossed that the EEOC will issue compatible guidance regarding the EEO-1 report and both agencies will follow-through with official updates to their respective requirements. Until then, making any changes now is likely to just lead to headaches and heartbreak.

OFCCP Publishes New 2020 CSALs – Including Construction, Promotion, and Accommodation Reviews

September 11, 2020 By Matt Nusbaum

The OFCCP has quietly published new 2020 “Corporate Scheduling Announcement Lists” (CSALs) on their website, laying out the contractor establishments that have been selected, but not yet scheduled for an OFCCP compliance evaluation. The agency has published two lists: one for supply & service contractors with 2,250 contractor establishments identified; and a separate list for construction contractors containing 200 entries.

Note that the appearance of an establishment on a CSAL list does not guarantee that the establishment will actually be audited any time soon. The audit is not formally initiated until the contractor receives a Scheduling Letter, and it is impossible to predict when the Scheduling Letter might arrive. In the past, some contractors have received Scheduling Letters on the day the CSAL was published; in other cases, the OFCCP did not initiate an audit for several years after the list was published. The agency’s current practice is to not send any Scheduling Letters to establishments until at least 45 days after publication of the corresponding CSAL.

New Focused Review Types

The CSAL includes information regarding the type of review, which could be a full audit, an even more invasive “corporate management compliance evaluation” (CMCE, which is a full audit with an additional focus on upper management), a compliance check, or a focused review. Until now, the OFCCP has only performed focused reviews in the areas of disability and veteran affirmative action. But the new 2020 list includes 500 establishments selected for new “promotion” focused reviews, and another 500 scheduled for new “accommodation” focused reviews.

However, it is unlikely that the OFCCP will start scheduling contractors for promotion or accommodation focused reviews any time soon. The agency has promised extensive guidance for contractors first, including much-needed guidance regarding things as basic as the definition of “promotion” (which is not defined in the agency’s regulations).

And for disability and veteran focused reviews, the OFCCP created new Scheduling Letters and had them approved through the Paperwork Reduction Act process prior to initiating those audits. Presumably, they will need to do the same for promotion focused reviews, yet there are no requests for approval for a promotion or accommodation focused review Scheduling Letter pending with the Office of Management and Budget.

CSAL Breakdown

Going down the list of review types, the new 2020 CSAL contains:

67 establishments selected for CMCE reviews;
402 establishments selected for regular, full audit;
250 establishments selected for a disability focused review;
500 establishments selected for a compliance check; and
31 contractors with functional plans selected for regular, full audit.

Notably, there are no contractors on the 2020 CSAL selected for veteran focused reviews, but the OFCCP only recently started working a 2019 CSAL of 500 veteran focused reviews (the “FY 2019 CSAL Supplement”).

Also of note, no single company appears more than 9 times on the new 2020 CSAL. While the OFCCP has no official limitation on the number of audits it can initiate for the same contractor, the agency does typically set its own internal limits, which are entirely up to the OFCCP’s discretion. In the past, that limit has been as high as 35 and as low as 5 (per parent company).

Construction Audits

The 2020 construction CSAL is the first time in a long time that we have seen any construction audits from the OFCCP. To our knowledge, the OFCCP does not have an approved Scheduling Letter for initiating full construction audits. However, earlier this year, the agency received approval for a new construction compliance check scheduling letter, and the construction CSAL indicates these will be compliance checks.

The construction compliance check Scheduling Letter (available here) requests:

Examples of personnel records that list construction trade employment activity (applicants, hires, promotions, etc.);
Examples of payroll records for construction trade employees working in the area under audit;
Examples of job advertisements and postings; and
Examples of accommodation requests (if any).

In addition, direct federal construction contractors (as opposed to federally-assisted construction contracts) must also submit their Section 503 (disability) and VEVRAA (veteran) AAPs.

The OFCCP has already laid the groundwork regarding contractor guidance in the form of a revamped construction-specific webpage and an all-new “technical assistance guide” here, so the agency could start scheduling construction audits ASAP.

As OFCCP district and regional offices work their way through the previous CSALs, they will eventually turn to the new 2020 lists as work demands and tools permit.