Friday, February 23, 2024: OFCCP Has Formally Proposed to Resurrect Monthly CC-257 Employment Utilization Report for Construction Contractors to Give OFCCP a New Way to Select Construction Contractors for Audit
Proposed Version of Reinstated Form Would Have Multiple Changes
In a move perhaps akin to a vampire or zombie story, OFCCP is seeking public comments regarding its sudden proposal (not mentioned in its Semi-Annual Regulatory Reports) to obtain approval from the Office of Management and Budget (“OMB”) to resurrect, with changes, a so-called Monthly Employment Utilization Report (CC–257) for construction contractors. The Clinton OFCCP discontinued these reports almost 30 years ago. No other Republican or Democrat Administration since then has thought the CC-257 reports worthwhile and all thought them too expensive for construction contractors and for OFCCP itself to process. (Thousands of them used to monthly stack up in agency hallways in boxes, unread.)
Note: Please read this story in conjunction with the following story discussing OFCCP’s simultaneous requests to OMB for it to approve a new construction contractor audit Scheduling Letter and attached Itemized Listing and to continue the use, for another three years, of a Construction Contract Award Notification Form (Form CC–314). OFCCP requires covered federal Government construction contractors to complete and file the Form CC-314 with OFCCP disclosing the contractor’s covered federal Government “subcontractors.”
In a Federal Register Notice, the agency explained that “covered construction contractors previously submitted [Form CC-257] to OFCCP on a monthly basis and [it] included information on employee work hours by race/ethnicity, gender, and trade in the covered area.” You may download a copy of the previous version of the form here. OFCCP discontinued the use of Form CC-257 on December 8, 1995. Comments on the proposal are due by April 23, 2024. You may submit them here or here.
OFCCP attached links to the Proposed CC-257 Form and Proposed CC-257 Form Instructions to the electronic version of the Federal Register Notice and on Regulations.gov (search for Docket (OFCCP-2024-0001)). As of our publication deadline, OMB has not yet posted its “Abstract” (i.e., OMB’s file dashboard on this OFCCP request) for OFCCP-2024-0001.
The text of the Notice itself simply states that, under the proposed changes, construction contractors would “provide information on employee work hours and employee count by race/ethnicity, gender, and trade in the covered area.” A corresponding 17-page Supporting Statement, attached to the Notice and posted on Regulations.gov, provides more detail.
OFCCP is in a Fast Hurry to Implement this New Reporting Requirement
“OFCCP plans to implement the re-instated CC-257 report upon OMB approval. OFCCP will provide stakeholder education on the collection and inform stakeholders of the implementation dates through its stakeholder messaging or other means.”
This statement ignores that requiring a new report from contractors must undergo not only OMB review pursuant to the Paperwork Reduction Act, but also Notice and Comment pursuant to the Administrative Procedure Act detailing the proposal, supplying definitions, and inviting review as to whether the proposal is either “arbitrary and capricious” and whether there is Congressional statutory authorization for the proposed CC-257 Report.
OFCCP’s statement also communicates a sense of informal treatment of this proposal despite the fact that, if implemented, the proposal will have grave repercussions within the construction contractor community.
OFCCP’s statement also ignores the reality that even if the re-inflated and revised CC-257 Report met legal muster in all respects that most construction contractors (especially construction contractors) do not…