OFCCP Debuts Updated Scheduling Letter for Construction Compliance Reviews

By Kenneth Rosenberg and Kelly McNaughton

The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) recently reauthorized its Construction Compliance Review Scheduling Letter and Itemized Listing with several notable revisions (the Amended Letter).

The Amended Letter notifies federal construction contractors that they have been selected to undergo a construction compliance review and advises what information to submit for the audit.

The Amended Letter applies to construction reviews scheduled on or after October 1, 2024. As such, federal construction contractors should become familiar with the revisions to the scheduling letter in order to ensure they are prepared to respond in the event they are selected for a compliance review.

The OFCCP conducts compliance reviews to determine whether federal construction contractors are in compliance with their affirmative action obligations under Executive Order 11246 (E.O. 11246) (for contracts of $10,000 or more); Section 503 of the Rehabilitation Act of 1973 (Section 503) (for contracts of $15,000 or more); and the Vietnam Era Veterans Readjustment Assistance Act of 1974 (VEVRAA) (for contracts of $150,000 or more).

The Amended Letter indicates that it may now be emailed, with a read receipt requested, as opposed to only being mailed via certified mail. It requests that contractor submissions be submitted electronically via email directly to the Investigator instead of via mail to the office. These changes are in line with the OFCCP’s goal to become paperless.

The Amended Letter also clarifies that the OFCCP will treat records as confidential to the maximum extent possible under the Freedom of Information Act and other applicable law. It also makes clear that the OFCCP may initiate enforcement proceedings if the contractor does not provide the requested information within 30 days of receipt of the letter.

Additionally, the Amended Letter includes an updated “Itemized Listing” of detailed information that is required to be submitted under E.O. 11246. The updated Itemized Listing imposes several new onerous obligations on construction contractors, including requiring them to:

• Provide more detail about their projects, including the location, state and end date and whether it is a commercial or residential job.
• Provide more in-depth payroll information for each employee, including overtime rate of pay, overtime hours worked and bonus information.
• Provide payroll information for employees “involved in the supervision, inspection, and other onsite functions incidental to the actual construction” which expands the requirement beyond only construction trade employees.
• Produce, in addition to their EEO Policy, anti-harassment policies, policies on EEO compliant procedures, policies on employment agreements and arbitration policies.
• Provide evidence that it included “Standard Federal Equal Employment Opportunity Construction Contract Specifications” and the “Notice of Requirement for Affirmative Action to Ensure Equal Employment Opportunity” in its construction subcontracts in excess of $10,000.
• Indicate if it does not have a unionized workforce.
• Provide documentation that it has reviewed its EEO policy with required personnel, as well as documentation that the contractor monitored employment practices and policies to ensure that it is non-discriminatory. Previously, a contractor would have to provide a copy of its EEO Policy, but now the Itemized Listing also requests additional policies, including those on anti-harassment and complaint procedures.
• Identify employment tests and selection procedures, including those that use artificial intelligence.
• Provide evidence that it monitored personnel and employment activities to ensure that there is no discriminatory effect.

There were also changes to the Itemized Listing for Section 503 and VEVRAA. Notably, for both, the listing now contains the following disclaimer: “Note: If your company’s sole contract coverage comes from federally assisted construction contracts you are not required to submit the information requested in the . . . Itemized Listing.” Both sections also now require that contractors include more than just their outreach efforts, but the criteria used to evaluate whether those efforts were effective, and descriptions of different recruitment efforts that were identified and implemented.

If a federal contractor receives a scheduling letter, it must respond timely to avoid an enforcement action being initiated against it by the OFCCP. As the information requested by the OFCCP’s scheduling letter is very detailed, and the deadline to respond to same is relatively short, construction contractors should ensure they are creating and maintaining the requisite records to submit as part of a compliance audit under EO 11246, Section 503 or VEVRRA. If a contractor is unsure what records to maintain, it should seek guidance from experienced counsel as preparing a compliant affirmative action plan is more than a paperwork exercise.

For more information, please contact Kenneth A. Rosenberg at krosenberg@foxrothschild.com or 973-994-7510, Kelly McNaughton at kmcnaughton@foxrothschild.com or 973-548-3392, or another member of our national Labor and Employment Department.

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