How We Got Here
If you like roller coasters, you will enjoy this reflection in the rear-view mirror. In an OFCCP February 2, 2023 email announcement, OFCCP reported that it had compiled a list of all entities that, according to the agency’s records, were federal contractors that submitted Component 1, Type 2 (consolidated) EEO-1 data for 2016 to and through 2020 and had not submitted objections to the release of those data by OFCCP’s October 19, 2022 deadline (OFCCP’s original objection date). NOTE: We use data in the plural. ALSO NOTE: This February 2, 2023 List was OFCCP’s first “Non-Objector Contractor List.”
Significant to this first “Non-Objector Contractor List,” in its February 14 Submitter Notice Response Portal “update,” OFCCP admitted errors in its February 2, 2023 “Non-Objector Contractor List”:
“Shortly after publishing the initial List, OFCCP learned that it contained errors, including the inclusion of some contractors that had previously submitted objections.”
Note: If that sounds familiar, it is because OFCCP experienced the same form of error by including companies improperly on its latest CSAL (“Corporate Scheduling Announcement List”). That January 20, 2023 CSAL announced upcoming audits of contractors that OFCCP determined had NOT “certified” their Affirmative Action Programs (“AAPs”) in OFCCP’s “Contractor Portal” in 2022 before the often-revised filing deadline eventually became set in concrete for December 1, 2022.
As DE reported in a February 15, 2023 Webinar discussing OFCCP enforcement actions anticipated in 2023, however, it appears that as much as 25% of that January OFCCP Corporate Scheduling Announcement List contained the names of companies which had in fact timely certified in OFCCP’s Contractor Portal. In fact, one AAP developer told the Week In Review that it alone had 50+ customers on the January 2023 CSAL which had timely certified out of the 500 AAP Establishments OFCCP had listed on that CSAL (i.e., +10% of that Corporate Scheduling Announcement List were in error relative to this one AAP vendor alone). In recent months, OFCCP has obviously become “database challenged” and has lost some critical attention to detail before “going public” with “Final” Lists. Learning to operate “at large scale” requires specialized skill sets, experience, and enormous attention to detail.
In addition, while not admitting in its February 14 “update” that some contractors were still crawling out of their caves and only now learning about OFCCP’s intentions to release their EEO-1 data, we reported last week, too, that OFCCP nonetheless begrudgingly published two updates to its “Submitter Notice Response Portal.”
In its first update on February 7, 2021, the agency extended to Friday, February 17, 2023, its previous February 7, 2023, deadline for contractors to inform the agency that OFCCP had incorrectly included their company’s name on the first (February 2nd) “Non-Objector Contractor List.”
Then, in a further update on February 10, OFCCP also announced its willingness to suddenly listen to new contractor objections to data release if the contractor had a good excuse explaining to OFCCP why it had not previously objected.
On that same day, Virginia Foxx (R-SC), Chairwoman of the House Committee on Education and Workforce, fired off a scathing letter to OFCCP complaining that the agency had not successfully notified all federal contractors about OFCCP’s intended release of contractor EEO-1 data, as we reported here (middle of story). Indeed, Chairwoman Foxx demanded OFCCP further extend its deadline for contractors to object for sixty (60) days.
Note: It is never good for a federal employment or labor law agency to get cross-wise with the Chair of a House or Senate Labor committee. While they do not dish out OFCCP’s annual budget, they talk to the Chairs of the Budget Committees.