Proposed Revisions to OFCCP’s New Itemized Listing in Pursuit of its EO 11246 Mission and Authority (Supporting Statement pages 10-15)
This is the big news because of the burden these document collections represent to construction contractors undergoing OFCCP audits. Moreover, if approved as written, the data OFCCP would be collecting from construction contractors would, for the first time, allow OFCCP to routinely collect a comprehensive set of contractor employment data that would position the agency to be able to effectively analyze unlawful employment discrimination in the major employment transactions that construction contractors are typically engaged (Applicants vs Hires; Promotions; Involuntary Terminations; Layoffs and Recalls).
Proposed revisions to the OFCCP’s proposed new Itemized Listing in pursuit of the agency’s EO 11246 mission and authority include:
Item 1: Item 1 currently requests a list of all construction projects (Federal, non-Federal, and federally assisted) by name and location during the preceding 12 months, including information identifying each project as commercial or residential and Federal or non-Federal. OFCCP proposes minor language changes for clarity and proposes modifying this item to also request the start and end dates (or anticipated end date) of each construction project. Having this information is important in construction reviews, OFCCP argued to OMB, as construction projects vary in duration and frequently stop work or reduce work hours due to seasonal downturns or other factors. Having information on the start and end dates will promote more efficient analyses, as OFCCP will better understand gaps and fluctuations in the contractor’s hiring, utilization, and pay data. This information will also help OFCCP better coordinate the agency’s timing to conducting on-site reviews and contact company personnel.
Item 2: Item 2 as it currently reads before OFCCP’s request today requests “[e]mployee level payroll data for all construction trade employees working in the (as appropriate insert either (1) the name(s) of SMSA or (2) the name(s) of Non-SMSA) during the preceding 12 months.” For each project, Item 2 requests payroll data with the following information:
- Employee name or ID;
- Gender;
- Race/Ethnicity;
- Hire date;
- All trades the employee was paid to work in;
- Total hours worked in each trade;
- Overtime hours worked in each trade;
- Wage rate(s) for each trade;
- Union affiliation;
- Apprenticeship status; and
- Employment type, including but not limited to, full-time, part-time, contract, per diem or day labor, and temporary employees.
OFCCP proposes modifying Item 2 to seek six additional fields of employment data and to read in the future , if OMB approves, as follows:
For each project identified in Item 1, please provide employee level payroll data for all construction trade employees working in the (as appropriate insert either (1) the name(s) of SMSA or (2) the name(s) of Non-SMSA) during the preceding 12 months:
- Employee name or ID;
- Gender;
- Race/Ethnicity;
- Hire date;
- Union affiliation;
- Apprenticeship status;
- Employment type, including but not limited to, full-time, part-time, contract, per diem or day labor, and temporary employees;
- Job title;
- Trade or supervision, inspection, or onsite function (g., foreperson);
- Regular hours worked in each trade, as indicated in your certified payroll;
- Regular rate of pay, as indicated in your certified payroll;
- Total regular pay, as indicated in your certified payroll;
- Overtime hours worked in each trade, as indicated in your certified payroll;
- Overtime rate of pay, as indicated in your certified payroll;
- Total overtime pay, as indicated in your certified payroll;
- Bonus or other pay, as indicated in your certified payroll;
- Time period covered for the pay and work hours provided in (j)-(p).
Important: According to OFCCP, asking for this additional information will allow the agency to conduct a more robust analysis, where the agency can determine whether there is potential discrimination with respect to all forms of compensation (e.g., disparities in overtime and bonuses), work hours, assignments, and other employment opportunities).
Item 3 ( NEW subparts): Item 3 currently requests data on the contractor’s construction trade employment activity (applicants, hires, promotions, layoffs, recalls, and terminations) in the covered area during the preceding 12 months.
OFCCP proposes modifying this item to clarify that the contractor should be providing the requested information for all trade employees, as well as those employees involved in the supervision, inspection, and other on-site functions incidental to the actual construction. This clarification is consistent with 41 CFR 60-1.3, which provides that “construction work” includes the supervision, inspection, and other on-site functions incidental to the actual construction, OFCCP stated.
Item 3(a) currently requests information on all applicants identified by name, race/ethnicity, gender, date applied, trade(s) applied for, referral source, and the action taken for each individual. OFCCP proposes modifying Item 3(a) to clarify that the information should include information on walk up applicants, electronic applications, and referrals from unions and/or employment and recruitment services. According to OFCCP, requesting this information is consistent with the regulations at 41 CFR 60-4.3(a)7.c, which require contractors to maintain this applicant and recruitment source information. The proposed language will ensure that contractors are clear about the scope of OFCCP’s request and will ensure greater uniformity in what OFCCP field offices request for this Item, the agency asserted.
Item 3(b) currently requests the contractor’s hire information including the name, trade, gender, and race/ethnicity for each employee. OFCCP proposes modifying this request to include information on the employees’ job title and date of hire. OFCCP explained that it uses the information in Item 3(b) to analyze whether there is potential hiring discrimination, and this additional information will assist OFCCP in determining which positions are similar for the purpose of analysis. Item 3(c) requires contractors to provide the name, trade/job title, gender, and race/ethnicity for each promoted employee. OFCCP uses this information to analyze whether there is potential discrimination with respect to promotions. OFCCP proposes modifying this item to include the date of each promotion. This information will improve OFCCP’s promotion analyses, as the agency can more easily identify which employees should be grouped together in its analyses and better identify what policies and practices were in place at the time of the promotion, OFCCP stated.
Item 3 currently requests information on layoffs but does not include a subpart specifying the layoff data contractors must submit. For clarity and consistency with the other items requested in Item 3, OFCCP proposes adding a new subpart specifying what information contractors must provide with respect to layoffs. The proposed language reads as follows:
Layoffs: This list should include the name, trade/job title, gender, race/ethnicity, date of layoff, reason for layoff, and recall eligibility.
Specifying this information will provide clarity on the scope of OFCCP’s request and ensure greater uniformity in what information field offices are requesting with respect to layoffs, the agency maintained.
Item 3(d) currently requests information on a contractor’s recalls, including the name, trade/job title, gender, and race/ethnicity for each recalled employee. OFCCP proposes expanding this request to include the date of the recall. Having this information will allow OFCCP to better analyze whether employees were subjected to similar/dissimilar treatment with respect to recalls, and better identify what recall policies and practices were in place at the time of each recall, the agency said. OFCCP also proposes moving this item to Item 3(e) (due to the addition of the layoff subpart discussed above).
Item 3(e) currently requests information on a contractor’s terminations, including the name, trade/job title, gender, and race/ethnicity for each terminated employee, and the specific reason for termination. OFCCP proposes expanding this request to include the date of the termination. Having this information will allow OFCCP to better analyze whether employees were subjected to similar/dissimilar treatment with respect to terminations, and better identify what termination policies and practices were in place at the time of each termination, according to the agency. OFCCP also proposes moving this item to Item 3(f) (due to the addition of the layoff subpart discussed above).
Item 4: Item 4 currently requests a copy of the company’s current EEO Policy, as required by 41 CFR 60-4.3(a)7.f. OFCCP proposes modifying this request to read as follows:
Copies of the company’s current Equal Employment Opportunity (EEO) policies, including the EEO Policy implemented pursuant to 41 CFR 60-4.3(a)7.f., antiharassment policies, policies on EEO complaint procedures, policies on employment agreements that impact employees’ equal opportunity rights and complaint processes (e.g., policies on arbitration agreements), and any other EEO policies.
According to OFCCP, having this information at the desk audit will help OFCCP ascertain whether there are any provisions in these employment policies and agreements that limit or interfere with employees’ rights under OFCCP’s antidiscrimination authorities and will allow OFCCP to better determine where to focus its inquiries to have the greatest impact. The proposed changes will also better align Item 4 with the information OFCCP already requests in its Supply and Service scheduling letter, promoting greater uniformity across OFCCP’s programs and enforcement, the agency stated.
Item 13: Item 13 currently requests a list of training programs the contractor participated in, including upgrading programs, apprenticeship, trainee programs, and on-the-job training programs in the covered area during the preceding 12 months. OFCCP proposes adding pre-apprenticeship programs to the list of training programs noted in this request. The language in the current scheduling letter is intended to cover these programs, but adding a specific reference to pre-apprenticeship programs will clarify the scope of this request and ensure uniformity in contractors’ submissions, OFCCP explained.
Item 15: Item 15 of the E.O. 11246 itemized listing currently requests a copy of the contractor’s reasonable accommodation policies and documentation of all accommodation requests received and their resolution, if any, during the preceding 12 months. The Section 503 and VEVRAA itemized listings request contractors submit documentation of all accommodation requests received and their resolution for individuals with a disability and disabled veterans, as required by 41 CFR 60-741.80 and 41 CFR 60-300.80. OFCCP proposes modifying Item 15 of the E.O. 11246 itemized listing to clarify that the contractor is only required to submit copies of its reasonable accommodation requests and resolutions, if any, if such reasonable accommodation requests and resolutions are different than those submitted in response to the Section 503 and VEVRAA itemized listings. This will prevent contractors from submitting duplicative information when responding to these items, OFCCP stated.
NEW Item 16: OFCCP’s regulations at 41 CFR 60-4.3(a)7.k require a contractor to validate all tests and other selection requirements where there is an obligation to do so pursuant to the Uniform Guidelines on Employee Selection Procedures (“UGESP”) requirements outlined in 41 CFR part 60–3. (Contractors do not need validate any test, although a “Best Practice” is to validate those tests which demonstrate a legally meaningful statistical “adverse impact” (meant in its technical sense and not just as to every statistical disparity). To verify contractors’ compliance with this requirement, OFCCP proposes adding a new item, Item 16, that reads as follows:
Identify all tests and selection procedures used in the hiring process for positions in the (as appropriate insert either (1) the name(s) of SMSA or (2) the name(s) of Non-SMSA) during the preceding 12 months. Provide evidence that these tests and selection procedures were validated where necessary in accordance with 41 CFR 60-4.3(a)7.k.
According to the agency, reviewing this information at the desk audit stage will help OFCCP determine whether all scheduled contractors are in compliance with the regulations. The language in the current scheduling letter does not allow for OFCCP to make this determination.
NEW Item 17 : OFCCP’s regulations at 41 CFR 60-4.3(a)7.m require a contractor to “ensure that seniority practices, job classifications, work assignments and other personnel practices, do not have a discriminatory effect by continually monitoring all personnel and employment related activities to ensure that the EEO policy and the contractor’s obligations under these specifications are being carried out.” To verify contractors’ compliance with this requirement, OFCCP proposes adding a new item, Item 17, that reads as follows:
Provide evidence that your company monitored personnel and employment related activities during the preceding year to ensure that seniority practices, job classifications, work assignments and other personnel practices did not have a discriminatory effect and that the EEO policy and the contractor’s EEO obligations were being carried out, as provided in 41 CFR 60-4.3(a)7.m.
Reviewing this information at the desk audit stage will assist OFCCP in determining whether all scheduled contractors are meeting this obligation, the agency noted. The language in the current scheduling letter does not allow for OFCCP to make this determination.