The Scheduling Letter and Itemized Listing, reviewed and approved by the Office of Management and Budget (OMB), set the framework for what data are required to submit in a compliance review. Specifically, item 18 in the Itemized Listing requires contractors to supply “data on your employment activity (applicants, hires, promotions, and terminations) for the immediately preceding AAP year”. The submission of update data is only required if the contractor is 6 months or more into the current AAP year upon receipt of the Scheduling Letter.
In some recent audits the OFCCP is automatically requesting data 2 years back from the Scheduling Letter date, which would include not only data from the AAP period under review, but also data from before and after the AAP period. This type of time period expansion may or may not be in accordance with regulatory guidance.
There are situations where OFCCP may reasonably request data outside of the AAP data timeframe. For example, it is acceptable for the OFCCP to seek records for a 2-year period in accordance with the general record-keeping obligations. Also, the Federal Contract Compliance Manual mentions that it may take special circumstances, such as the appearance of potential discrimination, to warrant a review period beyond the Scheduling Letter date. The OFCCP’s position in Frito Lay v. OFCCP was that these requests can be made if under a continuing violation theory, assuming that a violation was identified. Unfortunately, a formal ruling was not made in this case, so there is no final decision on whether the OFCCP’s position is appropriate. However, it is important to be aware of when this request may not be appropriate.
Here are some tips for responding to a request for data outside the elected AAP year or beyond the Scheduling Letter date:
- If there are no statistical indicators at the job title/group level (i.e., no apparent violations), then this may warrant a discussion with OFCCP. A simultaneous action would be to ask OFCCP to reevaluate the original data and confirm results.
- If there are statistical indicators (i.e., potential violations), ask OFCCP to identify the specific job titles/groups with a statistical indicator and limit the data request to those only for the AAP temporal scope.
- Should the OFCCP persist with a 2 year request, then contractors can identify the regulations at §60-2.1(c). It states that AAPs must be updated annually. If the OFCCP does not identify a special circumstance and the contractor is expected to update personnel activity on an off-cycle basis to coincide with the Scheduling Letter date, then this would exceed the annually updated portion of the regulations and approved burden-hour estimates from OMB. Additionally, it would devalue the requirement to annually develop AAPs and identify problem areas.
- To illustrate how providing additional information may present an issue, imagine that you had a January 1, 2015 AAP and received a scheduling letter on October 12, 2015. For the desk audit you submit your annual January 1, 2015 AAP and an update July 1, 2015 AAP. During follow-up requests the OFCCP requests data for three applicant job groups from October 12, 2013 through October 11, 2015 (i.e., 2 years back from the date of the scheduling letter). Although you did not see statistical indicators for the job groups requested when you proactively analyzed them, after submitting the 2 years of data to the OFCCP they indicate that there are indicators when analyzing the combined data. Given that this data is outside the temporal scope of your proactive AAPs, this indicator could not have been proactively identified.
In the past, requests for data outside the temporal scope of the audit have been rare; however, as noted above, DCI has seen this request several times in recent audits.
By Keli Wilson, Principal Consultant and Amanda Shapiro, Senior Consultant at DCI Consulting Group