Summary
OFCCP recently published its Corporate Scheduling Announcement Lists (CSALs) of supply and service contractors and construction contractors1 that OFCCP intends to audit for compliance with Executive Order 11246, section 503 of the Rehabilitation Act, and the Vietnam Era Veterans' Readjustment Assistance Act (collectively, the Affirmative Action Laws). OFCCP explains that the CSAL lists are a courtesy notification of impending compliance evaluations that may include reviews such as compliance checks, compliance or establishment reviews, reviews of corporate management compliance and functional affirmative action programs, as well as focused reviews on section 503 compliance, VEVRAA, accommodations, and/or promotions. The CSAL lists are available on the OFCCP website, and identify the type of audit that may be conducted. OFCCP has advised, however, that the lists are issued on a discretionary basis and may not identify all establishments that may be notified of an impending audit.
As most knowledgeable federal contractors are aware, OFCCP notifies federal contractors when their establishments have been selected for an audit to determine each establishment’s compliance with the Affirmative Action Laws. Such compliance evaluations are intended to measure whether the federal contractor’s identified establishments have complied with the Affirmative Action Laws and regulations promulgated thereunder and whether the specific federal contractor establishment has achieved results from the Affirmative Action Program that such establishments have instituted in accordance with the Affirmative Action Laws and regulations.
The regulations addressing compliance evaluations that are promulgated under the Affirmative Action Laws are found at 41 C.F.R. 60-1.20 (addressing obligations of contractors and subcontractors relating to equal employment opportunities); 41 C.F.R. 60-300.60 (addressing obligations of contractors and subcontractors relating to disabled veterans, recently separated veterans, active duty wartime or campaign badge veterans, and armed forces service medal veterans); and 41 C.F.R. 60-741.60 (addressing obligations of contractors and subcontractors relating to individuals with disabilities). As discussed above, OFCCP compliance evaluations may include one or more of the following: compliance reviews, off-site reviews of records, compliance checks, and focused reviews. See, e.g., 41 C.F.R. 60-1.20(a); 41 C.F.R. 60-300.60(a); 41 C.F.R. 60-741.60(a). For example, a compliance check is one type of compliance evaluation that measures a contractor’s maintenance of certain records, such as prior year affirmative action program results, job advertisements, and example accommodations for individuals with disabilities, that are required under Affirmative Action Laws, as well as whether a contractor has self-certified that it has affirmative action programs in place. The documents requested for a compliance check can be provided on-site or off-site, at the contractor’s option.
Takeaways
We encourage federal contractors, subcontractors and construction contractors that receive federal funds to check the applicable CSAL to determine whether OFCCP has identified one or more of their establishments for a compliance evaluation and, if so, which type of evaluation may be conducted. While compliance with the Affirmative Action Laws is required for contractors that meet statutory and/or regulatory thresholds, a federal contractor whose establishment is identified on the OFCCP’s list for a compliance evaluation should take the necessary steps to conduct an internal review of its compliance with these regulations in preparation for the impending OFCCP compliance evaluation prior to the receipt of a formal OFCCP notice.
Federal contractor and construction contractor establishments will be on notice of a pending OFCCP compliance evaluation upon receipt of a notification (Scheduling Letter) from OFCCP. For example, for a compliance check, the Scheduling Letter will require that the specific federal contractor for the selected establishment provide certain documentation to the OFCCP within 30 days. A sample of the scheduling letter for a compliance check and the documentation that OFCCP likely will request from federal contractor establishments, can be found on the OFCCP website. Federal contractors should understand that OFCCP will evaluate both the information supplied by the federal contractor for its identified establishment in response to the Scheduling Letter and how cooperative the federal contractor is in supplying requested information. If either the information provided by the federal contractor or construction contractor or the manner in which such information is provided is deemed deficient by OFCCP, such a deficient response may result in a more in-depth audit by OFCCP. Examples may include where contractors refuse to allow OFCCP access to an identified establishment for the on-site review of requested records or where a contractor fails to submit the listed records to OFCCP for a compliance check. Accordingly, appropriate preparation may significantly contribute to a successful audit result.
Reed Smith stands ready to assist you in understanding your obligations under the Affirmative Action Laws and the requirements OFCCP will be reviewing during the impending audits, as well as any other laws and regulations applicable to federal government contractors.
- Including construction contractors that are working on state and local projects that are funded by federal grants. See, e.g., Part III of Executive Order 11246; 41 C.F.R. 60-4.
Client Alert 2020-572
