The Office of Federal Contract Compliance Programs released a new Corporate Scheduling Announcement List (CSAL). The CSAL is a courtesy notification for contractors that they will be subject to a compliance evaluation in the near future.

The new CSAL includes 500 supply and service contractors, and the types of reviews to be scheduled are:

• 440 establishment reviews
• 30 corporate management compliance evaluations
• 24 functional affirmative action plan reviews
• 6 university reviews

Contractors on the CSAL can expect to receive a Scheduling Letter & Itemized Listing, receipt of which starts the compliance evaluation. Contractors must submit their affirmative action plans (AAPs) and supporting documentation within thirty days, and the OFCCP is loath to grant extensions. The agency’s current policy is to allow extensions only in “extraordinary circumstances,” such as:

• Extended medical leaves of absences of key personnel
• Localized or company-specific disaster affecting records retrieval, such as a flood, fire, or computer virus
• Unexpected military service absence of key personnel
• Unexpected turnover or departure of key affirmative action official

Here are the top ten ways that contractors can prepare for an OFCCP compliance evaluation:

(1) Determine whether you are on the CSAL. If you are on the list, take advantage of the advance notice to prepare. While the OFCCP contends that thirty days is sufficient time for a compliant contractor to provide all of the requested information, the “new and improved” Scheduling Letter & Itemized Listing makes this endeavor all the more difficult.

Thus, if you are on the CSAL, begin preparations now.

(2) Review existing AAPs to determine priorities. What is your AAP date? Do you have a current, unexpired AAP in place? Or is the existing AAP about to expire soon? The answers to these types of questions will dictate your next steps. For example, if your existing AAP has expired, priority number one will be to develop a new AAP. In contrast, if you have a current AAP in place, first priorities will include evaluating areas of potential concern, such as adverse impact in the hiring process.  (See #4 below).

Thus, if you are on the CSAL, determine your starting point and plan accordingly.

(3) Be mindful of AAP date. Because AAPs must be updated annually, contractors are continually in a revolving state of preparing and evaluating AAPs. And one complexity that the OFCCP seems to overlook is that the timing of the Scheduling Letter & Itemized Listing controls how prepared a contractor will actually be.

For example, let’s take a contractor with an AAP date of July 1st. If that contractor receives a Scheduling Letter on February 1st, it will have to submit its July 1st AAPs and an additional six months of data because it is more than six months into its AAP cycle when it receives the Scheduling Letter. Regardless of how well-prepared the existing AAPs are, gathering and preparing an additional six months of data can be extremely time-consuming.

Depending on the number of AAPs a contractor has, as well as the size of the AAPs, a contractor will typically be several months into its new AAP year before new and current AAPs are in place. So, now let’s consider a contractor with a plan date of July 1st who receives a Scheduling Letter on August 4, 2024. Regardless of how much time and expense our hypothetical contractor has spent preparing its July 2023 AAPs for audit, that AAP expired, and the contractor is likely in the middle of developing new AAPs with a brand new data set. It therefore has a very short window of time before the expiration of the thirty-day deadline to submit its new AAPs to the OFCCP. 

The crux of this point is that no matter how diligently a contractor prepares for an eventual audit, some of that prep work may need to be redone. However, this does not mean that the work was done in vain. Even if a new data set is needed, much of the groundwork -- identification of potential problem areas, updating EEO-1 codes and job group structure, etc. – will carry over, and the contractor can reap the benefits of the prior efforts. 

Thus, if you are on the CSAL, it is never too early to start preparing your AAPs and related data.

(4) Research areas of adverse impact. After the AAPs are prepared, but before submission to the OFCCP, the contractor should be keenly aware of whether any employment processes show potential adverse impact.

Item 18 of the Itemized Listing requires contractors to provide detailed data on applicants, hires, promotions, and terminations. The OFCCP will analyze this data to determine whether disparities in the selection rates for any race or gender exist. A statistically significant difference raises the inference of discrimination, which the contractor has the burden of explaining. A review of the OFCCP’s conciliation agreements demonstrates that contractors are not always successful in rebutting that presumption. Because this (as well as #5 below) is the main area that can result in monetary liability for a contractor, it should be considered a significant priority.

Thus, if you are on the CSAL, identify areas of adverse impact and develop a strategy for eliminating or reducing the concern. This often requires strategic and detailed reviews of the underly data and processes.

(5) Analyze compensation practices. The OFCCP requires contractors to submit employee-level data for both the current and prior year snapshots of the workforce. (See Item 19). The regulations also require that contractors evaluate their compensation system on an annual basis to determine if disparities based on race or gender exist. 41 C.F.R. § 60-2.17(b)(3). To ensure compliance with that requirement, the OFCCP mandates that contractors provide some evidence that it has complied and undertaken such an evaluation. (See Item 22).

Thus, if you are on the CSAL, conduct compensation analyses (advisedly under the attorney-client privilege), evaluate the results to determine where disparities exist and how they are explained, and prepare the documentation to demonstrate to the OFCCP that the evaluation was completed.

(6) Gather non-data elements in Itemized Listing. The Itemized Listing contains a plethora of information that is not related to AAP data that must be provided. Thus, unlike the data concerns outlined in #3 above, these items are generally not evolving and can be gathered well before the compliance evaluation begins. Examples include:

• EEO-1 Reports for the past three years (see Item 16)
• Collective bargaining agreements (see Item 17)
• Compensation policies and practices (see Item 19(b) and (c))
• Information on selection processes, including artificial intelligence (see Item 21)
• Reasonable accommodation policies and documentation relating to accommodation requests (see Item 23)
• EEO-related policies (see Item 24)

Thus, if you are on the CSAL, knock out the low-hanging fruit now so that you can focus on the data during crunch time.

(7) Evaluate recruitment efforts. The OFCCP expects that contractors are thoroughly evaluating their recruitment efforts. (See Items 8 and 12 of the Itemized Listing). During the compliance evaluation, the OFCCP will want to review the contractor’s individualized assessment. Gone are the days when boilerplate explanations are acceptable.

Thus, if you are on the CSAL, do an in-depth assessment of your recruitment sources and whether additional efforts are needed.

(8) Ensure decision-makers have been trained on affirmative action. Contractors are required to provide training to individuals who make employment-related decisions. 41 C.F.R. §§ 60-300.44(j) and 60-741.44(j).  And if the OFCCP comes onsite, it is likely to ask managers whether they have received training on the contractor’s commitment to affirmative action.

Thus, if you are on the CSAL, make sure decision-makers have received applicable training.

(9) Review information on career page. Does your career page include links to all the required posters? Does it explain how applicants can request a reasonable accommodation in the application process? Do job descriptions contain the EEO tagline and all relevant basic qualifications.

The OFCCP typically evaluates a contractor’s website to obtain basic information and assess its online presence for compliance. Information that is publicly available provides an easy starting point for the OFCCP to judge compliance efforts.

Thus, if you are on the CSAL, assess your career site to ensure regulatory obligations are met.

(10) Engage legal counsel. Yes, I know this sounds self-serving. . . but it’s true. The OFCCP regulations are complicated. Compliance is challenging, and there are a myriad of ways to trip up or let items fall through the cracks. An experienced lawyer can help guide you through the preparation process, as well as assist during the compliance evaluation itself.

Thus, if you are on the CSAL, reach out to any member of Constangy’s Affirmative Action/OFCCP Compliance Practice Group or your other legal counsel for representation.

This top ten list is just the tip of the iceberg, but you get the gist. Prepare early and often. Good luck out there!