ofccp compliance check, scheduling letter and item listing ... · the u.s. department of labor,...
TRANSCRIPT
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OFCCP Compliance Check,
Scheduling Letter and Item
listing changes
11/15/2011
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Agenda
• High-level overview
• Side-by-side comparison
• Impacts and Issues
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Quote of the day (from the proposal): “a contractor expends 28.35 hours on data assembly and submission activity. Changes to the revised Scheduling Letter and Itemized Listing reduce contractor burden hours to 27.01”
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Compliance Check Letter Although compliance check letters have not been used in a while, it appears that they may be returning based on the fact that they have revised the letter. The revised letter appears to have the same general content as the previous letter. Compliance reviews are on-site and consist of the contractor making available for review: • AAP results for preceding year • Examples of job advertisements, including listings with state employment
services • Examples of accommodations made for persons with disabilities Allows contractor to mail/email information rather than an on-site.
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Scheduling Letter • New letter has some new language – “requiring contractors covered under
section 4212 to file an annual report on their employment and hiring of protected veterans.” This is referring to the submission of the Vets Reports.
• Elimination of I9 language • Failure to comply language in letter is more prominent than in previous letter • New letter eliminates disclaimers such as “findings will determine if onsite”
which hints that an onsite is possible under any circumstance. • Pushing electronic or email submission a bit more heavily than in previous
letter
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Itemized listing
• Most of the old “or” language is now “and” language
• Some notes are removed, possibly with the intention of making submission less “optional”
• Requires copies of leave policies to be submitted
• Requires employment activities (counts) to be prepared using race/ethnicity
• Requires changes to promotion and termination count submission
• Includes many of the data requested in recent follow-up letters (additional compensation data elements, accommodations, etc)
• Requires submission of VETS reports for current and previous year
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For submission of employment activities - substantial changes:
• Require counts by race/ethnicity and gender – no longer total minority
• Requires submission counts by Job Group AND Job Title (no longer “or”) • Promotional information must now include the “actual pool of candidates who applied or were
considered”
• No longer able to send “involuntary counts only” – new letter states “please identify terminations as either voluntary or involuntary”
• Also for terminations, where selection for terminations were made (reductions in force, for example) you must now include “actual pool of employees” from which the termination selections were made
For compensation submission - substantial changes:
• Compensation data must be as of February 1st – no longer as of plan date (or date of choice) • Request includes: race/ethnicity, hire date by job title, EEO-1 and job group
• Earnings are more specific and include all types of pay
•Although not indicated as required additional factors are suggested: education, past experience, duty location, performance ratings, department, function, salary band/grade/range, etc
•Copies of documentation, policies etc., related to compensation practices
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Dissecting the
Itemized Listing
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PROPOSED LETTER CURRENT LETTER
The U.S. Department of Labor, Office of Federal Contract
Compliance Programs (OFCCP), selected your
___________________[Insert: establishment, functional
unit, or corporate headquarters] located at for a
_________________ [Insert: compliance evaluation or
corporate management compliance evaluation (CMCE)].
We are conducting this ________________ [Insert:
compliance evaluation or CMCE] under the authority of
Executive Order 11,246, Section 503 of the Rehabilitation
Act of 1973, the affirmative action provisions of the
Vietnam Era Veterans’ Readjustment Assistance Act of
1974 and their implementing regulations in 41 CFR
Chapter 60. In addition to determining your compliance
with these authorities, we will also verify your
compliance with the regulations issued by the Veterans’
Employment and Training Service (VETS) requiring
contractors covered under Section 4212 to file an annual
report on their employment and hiring of protected
veterans.
The U.S. Department of Labor, Office of Federal Contract
Compliance Programs (OFCCP) has selected your
establishment ___________ located at ______________
for a ________________ under Executive Order 11246,
as amended, Section 503 of the Rehabilitation Act of
1973, as amended, and the Vietnam Era Veterans’
Readjustment Assistance Act of 1974, as amended, 38
U.S.C. 4212, and their implementing regulations at CFR
Chapter 60. In addition, the review will include an
examination of your establishment’s compliance with
the Federal Contractor Veterans’ Employment Report
(VETS-100) requirements (38 U.S.C 4212(d)).
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A compliance evaluation is initiated as a compliance
review. The compliance review may progress in three
phases: a desk audit, an on-site review, and an off-site
analysis. OFCCP describes the phases of a compliance
review in its regulations at 41 CFR Chapter 60. For the
desk audit, please submit the following information:
1. a copy of your current Executive Order Affirmative
Action Program (AAP) prepared in accordance
with the requirements of 41 CFR § 60-1.40, and 41
CFR § 60-2.1 through § 60-2.17;
2. a copy of your current Section 503 and Section
4212 AAPs prepared in accordance with the
requirements of 41 CFR § 60-741.40 through § 60-
741.44, 41 CFR § 60-250.40 through § 60-250.44
and/or 41 CFR § 60-300.40 through § 60-300.44,
respectively; and
3. the support data specified in the enclosed
Itemized Listing.
OFCCP will conduct the compliance review as
described in the regulations at 41 CFR 60-1.20(a)(1)
and 60-250.60(a)(1), 60-300.60, and 60-741.60, which
outline the three possible phases of the process.
These phases may include a desk audit, an onsite
review, and an offsite analysis.
For the desk audit please submit the following
information: (1) a copy of your Executive Order
Affirmative Action Program (AAP) prepared in
accordance with the requirements of 41 CFR § 60-
1.40, and 41 CFR § 60-2.1 through § 60-2.17*; (2) a
copy of your Section 503/38 U.S.C. 4212 AAP(s)
prepared according to the requirements of 41 CFR
Parts 60-741 and 41 CFR Parts 60-250 and/or 60-300,
respectively; and (3) the support data specified in the
enclosed Itemized Listing.
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Please submit your AAPs and the support data specified in the
enclosed Itemized Listing to the address listed on page one of this
letter as soon as possible, but no later than 30 days from the date
you receive this letter. Pursuant to 41 CFR § 60-1.12(e), failure to
preserve complete and accurate records constitutes non-compliance
with your obligations as a Federal contractor or subcontractor. Once
the evaluation begins, you are required to maintain all personnel and
employment records described in the regulations enforced by OFCCP
until the final disposition of the evaluation.
We encourage you to submit your information in an electronic
format to reduce the amount of time it takes to complete our
evaluation of your [Insert establishment, functional unit, or
corporate headquarters]. Should you opt to email your submissions,
use email address __________.
You should be aware that OFCCP may initiate enforcement
proceedings if you fail to submit AAPs and support data that
represent a reasonable effort to meet the requirements of the
regulations in 41 CFR Chapter 60.
Rest assured that OFCCP considers the information you provide in
response to this Scheduling Letter as sensitive and confidential.
Therefore, any disclosures we may make will be consistent with the
provisions of the Freedom of Information Act.
Please contact ____________at ______________if you have any
questions concerning the compliance evaluation.
OFCCP will treat the information you submit in
response to this letter as sensitive and confidential to
the maximum extent permitted under the Freedom of
Information Act.
The findings OFCCP makes during the desk audit
generally will determine whether an onsite review will
be necessary, and if so, whether the onsite will focus
on one, two or several issues. If an onsite review is
necessary, we will notify you.
You should note that 41 CFR 60-2.2 authorizes the
initiation of enforcement proceedings if the materials
you submit for desk audit do not represent a
reasonable effort* to meet the requirements of the
regulations.
Please submit your AAPs and the support data specified
in the enclosed Itemized Listing to the address listed on
page one of this letter as soon as possible, but no later
than 30 days from the date of your receipt of this letter.
We encourage you to submit as much information as
possible in electronic format as doing so may reduce
the amount of time it takes to complete our review.
If you have any questions concerning the compliance
review, please feel free to contact ________ and
______________.
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PROPOSED ITEMIZED LISTING CURRENT ITEMIZED LISTING
Executive Order AAP
1. An organizational profile prepared according to 41
CFR § 60-2.11.
2. The formation of job groups (covering all jobs)
consistent with criteria given in 41 CFR § 60-2.12.
3. For each job group, a statement of the percentage
of minority and female incumbents as described in
41 CFR § 60-2.13.
4. For each job group, a determination of minority
and female availability that considers the factors
given in 41 CFR § 60-2.14(c)(1) and (c)(2).
5. For each job group, the comparison of incumbency
to availability as explained in 41 CFR § 60-2.15.
6. Placement goals for each job group in which the
percentage of minorities or women employed is
less than would be reasonably expected given their
availability as described in 41 CFR § 60-2.16.
Note 1: The Executive Order AAP submission must demonstrate
a reasonable effort to comply with 41 CFR Part 60-2. To do so, at
a minimum, you must submit the following elements.
Both the AAP and support data are essential to conduct the desk
audit phase of the compliance review. If any of the following
information is computerized, you may submit it in an electronic
format.
Executive Order AAP
1. An organizational profile prepared according to 41 CFR §
60-2.11.
2. The formation of job groups (covering all jobs) consistent
with criteria given in 41 CFR § 60-2.12.
3. For each job group, a statement of the percentage of
minority and female incumbents as described in 41 CFR §
60-2.13.
4. For each job group, a determination of minority and female
availability that considers the factors given in 41 CFR § 60-
2.14(c)(1) and (c)(2).
5. For each job group, the comparison of incumbency to
availability as explained in 41 CFR § 60-2.15.
6. Placement goals for each job group in which the percentage
of minorities or women employed is less than would be
reasonably expected given their availability as described in
41 CFR § 60-2.16.
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Support Data
7. Copies of your Employer Information Report EEO-1 (Standard
Form 100 Rev.) for the last three years.
Support Data
7. Copies of your Employer Information Report
EEO-1 (Standard Form 100 Rev.) for the last
three years.
8. Copies of your employment leave policies including, but not
limited to, policies related to sick leave, medical leave,
personal leave, leave for pregnancy, leave for pregnancy-
related conditions, leave for religious holidays and
observances, Family Medical Leave, and other leaves of
absence. Also, submit copies of your policies on
accommodations for religious holidays and observances.
If any of these leave and religious accommodation policies
are a part of your employee handbook or manual, you may
send the handbook/manual or a copy of the cover of the
handbook/ manual, the Table of Content and relevant pages
on leave and religious accommodations policies.
9. A copy of your collective bargaining agreement(s), if
applicable. Include any other documents you prepared,
such as policy statements, employee notices or handbooks,
etc. that implement, explain, or elaborate on the provisions
of the collective bargaining agreement.
8. A copy of your collective bargaining
agreement(s), if applicable. Please also
include any other information you have
already prepared that would assist us in
understanding your employee mobility
system(s), e.g., promotion, etc.
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10. Information on your affirmative action goals for the
immediately preceding AAP year and, where applicable
(see below), progress on your goals for the current AAP
year.
For the immediately preceding AAP year, this report must
include information that reflects:
a. job group representation at the start of the AAP year, (i.e.,
total incumbents, total minority incumbents, and total
female incumbents);
b. the percentage placement rates (% goals) established for
minorities and women at the start of the AAP year; and
c. the actual number of placements (hires plus promotions)
made during the AAP year into each job group with goals
(i.e., total placements, total minority placements, and
total female placements). For goals not attained, describe
the specific good faith efforts made to achieve them.
If you are six months or more into your current AAP year
on the date you receive this listing, please also submit
information that reflects progress on goals established in
your current AAP year, and describe your implementation
of action-oriented programs designed to achieve these
goals.
9. Information on your affirmative action goals for the
preceding AAP year and, where applicable (see below),
progress on your goals for the current AAP year. See 41
CFR 60-1.12(b), -2.1(c) and -2.16.
For the preceding AAP year, this report must include
information that reflects:
(a) Job group representation at the start of the AAP year,
(i.e., total incumbents, total minority incumbents, and
total female incumbents);
(b) The percentage placement rates (% goals) established for
minorities and/or women at the start of the AAP year;
and
(c) The actual number of placements (hires plus promotions)
made during the AAP year into each job group with goals
(i.e., total placements, total minority placements, and
total female placements). For goals not attained,
describe the specific good faith efforts made to achieve
them.
If you are six months or more into your AAP year on the
date you receive this listing, please also submit
information that reflects progress on goals established in
your current AAP, and describe your implementation of
action-oriented programs designed to achieve these
goals (see 41 CFR 60-2.17(c)).
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11. Data on your employment activity (applicants, hires, promotions,
and terminations) for the immediately preceding AAP year and, if
you are six months or more into your current AAP year when you
receive this listing, provide the information in 11(a) through (c)
below for at least the first six months of the current AAP year. You
should present these data by job group (as defined in your AAP) and
by job title.
a. Applicants and Hires: For each job group and job title, this analysis
must consist of the total number of applicants and the total number
of hires, as well as the number of African-American/Black,
Asian/Pacific Islander, Hispanic, American Indian/Alaskan Native,
White, and the number of female and male applicants and hires.
For each job group and job title applicants for whom race and/or
sex is not known, should be included in the data submitted.
However, if some of your job groups or job titles (most commonly,
entry-level) are filled from the same applicant pool, you may
consolidate your applicant data (but not hiring data) for those job
groups or titles.
For example, where applicants expressly apply for or would qualify
for a broad spectrum of jobs (such as “Production,” “Office,” etc.)
that includes several job groups, you may consolidate applicant
data.
10. Data on your employment activity (applicants, hires,
promotions and terminations) for the preceding AAP year
and, if you are six months or more into your current AAP
year when you receive this listing, for the current AAP
year. These data must be presented either by job group
(as defined in your AAP) or by job title (see 41 CFR 60-3.4
and 3.15).
a. Applicants and Hires: the regulations at 41 CFR 60-2.17(b)
and (d) require an analysis of your selection process,
including whether the process eliminates a significantly
higher percentage of minorities or women that
nonminorities or women than nonminorities or men.
For each job group or job title, this analysis must consist
of the total number of applicants and the total number
of hires, as well as the number of minority and the
number of female applicants and hires.
However, if some of your job groups or titles (most
commonly, entry-level) are filled from the same applicant
pool, you may consolidate your applicant data (but not
hiring data) for those job groups or titles.
For example, where applicants expressly apply for or
would qualify for a broad spectrum of jobs (such as
“Production,” “Office,” etc.) that includes several job
groups, you may consolidate applicant data.
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b. Promotions: For each job group and job title, provide the
total number of promotions by gender and race/ethnicity,
as well as the actual pool of candidates who applied or
were considered for promotion by gender and
race/ethnicity. Also, include a definition of “promotion”
as used by your company. If it varies for different
segments of your workforce, please define the term as
used for each segment.
c. Terminations: For each job group and job title, provide
the total number of employee terminations by gender
and race/ethnicity, as well as the actual pool of
candidates who were considered for terminations by
gender and race/ethnicity.
Additionally, please identify employee terminations as
either voluntary or involuntary, if available. When
presenting terminations by job title, include the
department and job group from which the person(s)
terminated.
b. Promotions: The regulations at 41 CFR 60-2.17 (b) and (d)
require an analysis of your promotion practices to determine if
upward mobility of minority or female employees is occurring at
a lesser rate (compared to workforce mix) than nonminority or
male employees.
For each job group or job title, this analysis must consist of
the total number of promotions, as well as the number of
minority and the number of female promotions.
Please note that:
(1) If you present promotions by job group, indicate how
your company defines promotions and the basis on which
the data were compiled (e.g., promotions to the job group,
from and/or within the job group, etc), or
(2) If you present promotions by job title, include the
department and job group from which and to which the
person (s) was promoted.
c. Terminations: The regulations at 41 CFR 60-2.17 (b) and (d)
require an evaluation of the degree to which nondiscrimination
policy is carried out with respect to employee terminations.
For each job group or job title, this analysis must consist of the
total number of minority and the number of female
terminations.
Please note that if you present terminations by job title, include
the department and job group from which the person (s)
terminated.
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12. Employee level compensation data for all employees
(including but not limited to full-time, part-time, contract,
per diem or day labor, temporary) as of February 1st (i.e.,
the data as it existed on the most recent February 1st
date). Provide gender and race/ethnicity information and
hire date for each employee by job title, EEO-1 Category
and job group, preferably in a single file. Provide all
requested data electronically via email or computer disc in
Excel or PDF format, if available.
a. For all employees, compensation includes base salary,
wage rate, and hours worked. Other compensation or
adjustments to salary such as bonuses, incentives,
commissions, merit increases, locality pay or overtime
should be identified separately for each employee.
b. You may provide any additional data on factors used to
determine employee compensation, such as education,
past experience, duty location, performance ratings,
department or function, and salary
level/band/range/grade.
c. Documentation and policies related to compensation
practices of the contractor should also be included in
the submission, particularly those that explain the
factors and reasoning used to determine compensation.
11. Please provide annualized compensation data
(wages, salaries, commissions, and bonuses) by
either salary range, rate grade, or level showing total
number of employees ** by race and gender and
total compensation by race and gender. Present
these data in the manner most consistent with your
current compensation system. If you maintain the
information in electronic format, please submit in
that format. See 41 CFR 60-1.1(a) (1). You may also
include any other information you have already
prepared that would assist us in understanding your
compensation system (s). Alternatively, under the
voluntary guidelines for self-evaluation of
compensation practices, 71 Fed. Reg. 35114 (June
16, 2006), you have the option of seeking
compliance coordination. If you so choose, you
need not submit the annualized compensation data
outlined in Item 11. However you must notify
OFCCP that you “seek compliance evaluation
guidelines.”
** for this purpose, the method used to determine
employee totals by the contractor should be the
same as that used to determine employee totals in
the organizational profile for the AAP.
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13. Support Data for Section 503 and Section 4212 (commonly
referred to as VEVRAA).
a. Copies of your Veterans’ Employment Report (VETS-100
and/or VETS-100A) for current year and the previous year.
b. Copies of accommodation policies and records of
accommodations granted under Section 503 and Section 4212 NOTES
NOTE 1: If any of the requested information is computerized, you may submit it
in an electronic format. Please use caution when submitting large electronic
files. Check with the OFCCP Compliance Officer and your system administrator
to ensure adherence to administrative and system guidelines.
Note 2: According to the Paperwork Reduction Act of 1995, an agency may not
conduct or sponsor, and a person is not required to respond to, a collection of
information unless it displays a valid OMB control number. The valid OMB
control number for this information collection is 1250-0003. We estimate that
the average time required to complete this information collection is 26.01 hours
per response, including the time for evaluating instructions, searching existing
data sources, gathering and maintaining the data needed, and completing and
evaluating the collection of information.
Send any comments concerning this burden estimate or any other aspect of this
collection of information, including suggestions for reducing the burden, to the
Office of Federal Contract Compliance Programs, Room C-3325, 200
Constitution Avenue, N.W., Washington, D.C. 20210.
