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HR Policy Responds to Burdensome OFCCP Audit Proposal

The Labor Department’s Office of Federal Contract Compliance Programs’ proposed changes to its auditing process for federal contractors are overly burdensome, redundant, and prone to cause confusion among companies, the Association stated in written comments

Proposed changes to the scheduling letter, explained: A "scheduling letter” formally initiates federal contractor affirmative action audits, identifying the data that must be initially provided to OFCCP at the earliest stage of a compliance evaluation. Normally, OFCCP requests a minimal amount of data to determine if more information is needed to perform an audit, which occurs in only 0.5 to 1.0% of all cases. The amount of additional information required by the far-reaching proposed changes will significantly increase the time required for compliance by 40%, according to DOL’s own estimates.

A survey of contractors by The Institute for Workplace Equality, however, indicates that the actual burden will be approximately 89 hours—over 125% higher than OFCCP’s estimate and 218% over current levels. Despite the drastic increase, OFCCP would continue to require responses to the letter in 30 calendar days, according to the proposal. 

OFCCP similarly severely underestimates the cost to federal contractors, failing to consider the related and necessary technical costs and additional follow-up work required, in addition to fees to external partners to run complex data reports. 

Cause of confusion: The requirement for federal contractors to provide affirmative action program plans for all parts of a company in a “campus-like setting” will create confusion and unnecessary compliance burdens on contractors. Our comments note that nowhere within Executive Order 11246, within any of the regulations prescribing OFCCP’s authority, or within the proposal itself is “campus-like setting” defined. Nor is there any case law defining such a concept that would prove useful to employers.

Other areas of concern addressed in our letter include requiring contractors to submit two compensation snapshots, data on AI systems, information regarding promotions, and compensation data for temporary employees provided by staffing agencies.

HRPA also co-authored extensive comments with the U.S. Chamber of Commerce and The Institute for Workplace Equality, additionally noting the questionable statutory authority of several aspects of the proposed changes. 

Looking ahead: OFCCP’s current scheduling letter expires on April 20 of this year—meaning that any finalized changes will be implemented after that date.

Published on: January 20, 2023

Authors: Daniel W. Chasen

Topics: Employment Law

Daniel W. Chasen

Vice President, Workplace Policy, HR Policy Association

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Contact Daniel W. Chasen LinkedIn

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