2. Compliance Evaluation Scheduling and Timely Desk Audit Submission
“To promote efficiency in compliance evaluations, reach additional contractors and positively impact more workers…”
Scheduling
- “Neutral” Scheduling Chopped? OFCCP makes the bald statement that it is “enhancing its neutral scheduling procedures.” However, OFCCP has provided no information as to how it will undertake “neutral” scheduling procedures or exactly what it is changing. And, as you will see in the next paragraph, OFCCP did leave contractors with the suggestion that the agency is exercising discretion in its audit selection methodologies (raising potential Fourth Amendment issues, if so) while nonetheless baldly labeling that exercise of discretion to be “neutral.” (Listen to what I say; not what I do).
- Note: OFCCP makes no claim any longer its audit selections will be “random.” Contractors will just have to wait for the so-called “Transparency Letter” (see below) which, since the Trump Administration, has accompanied each new CSAL and has provided a detailed explanation of how, exactly, OFCCP chose its audit targets for that CSAL.
- What OFCCP does say is that it plans to “reach a broader universe of contractors and subcontractors and to identify those with greater risk factors for noncompliance with nondiscrimination and affirmative action requirements.” This statement raises substantial questions: What “risk factors,” how would OFCCP identify and gather these “risk factors” and has it validated each such “risk factor” as indeed correlated to non-compliance? If OFCCP has now identified such a compass showing the way ahead in audit selections, it will be the first OFCCP Administration to have found the magic which has eluded all OFCCP’s predecessor administrations. And how would OFCCP know that from either contractor EE0-1 filings or (eventually) from the data entered into the AAP verifications of completed AAPs without exercising its discretion?
- OFCCP “Transparency Letter” Re Audit Selection Methodology To Continue. The Agency reports it will continue to provide its scheduling methodology as it began under Trump OFCCP Director Ondray Harris. The Transparency Letter came about accidentally in response to an on-site Town Hall meeting of DirectEmployers Member companies at OFCCP Headquarters where a spontaneous discussion revealed to surprised senior OFCCP policy managers the strong concern the contractor community had about the agency’s audit scheduling methodology. To its great credit, the OFCCP responded only about three weeks later when Marika Litras, then the Director of the OFCCP Enforcement Division, published for public view a succinct but detailed step-by-step report of how OFCCP had selected Supply & Service contractors for audit in its last CSAL. This is a very good tradition and seems destined to continue regardless of the plight of the CSAL, discussed next.
- WHERETO THE CSAL, NOW THAT OFCCP HAS REMOVED THE 45-DAY WARNING RUNWAY OF COMING OFCCP AUDITS? OFCCP reports it will continue to post a CSAL, although its utility seems to have been completely overtaken and undermined by OFCCP’s AAP Verification Initiative, and now with the removal of the 45-audit delay mechanism. It is important to remember that the CSAL was an OFCCP career employee recommendation to then Bush Administration (the son) OFCCP Director Charles James to make OFCCP more efficient by putting contractors on advance notice of coming OFCCP audits. The thinking was that OFCCP otherwise too often caught contractors by surprise. With the 45-day warning, it was thought, contractors could then have their AAPs tidy and ready for the coming audit. But, of course, the new OFCCP Verification Initiative (whether illegal or not) will collect “certifications” that the contractor’s AAPs are “developed and maintained” and thus are ready for OFCCP audit.
- By the way, now that you understand that the VERY purpose of the CSAL was to give contractors an advance warning of coming OFCCP audits, you will now appreciate that OFCCP’s new decision to remove that advance warning time now defeats the entire purpose of the CSAL. So, OFCCP’s removal of the 45-day built-in delay before OFCCP begins to schedule audits from the new CSAL seems very confused to put it kindly. And that is even before one considers the impact on the CSAL and its continuing utility once OFCCP collects AAP “verifications” affirming to OFCCP that the referenced AAP Establishments have “developed” and have “maintained” AAPs in place, and thus ready for audit. Once OFCCP thinks this through, CSALs will be another OFCCP relic of the past. Roll wrecking ball.
Here is what OFCCP said about the demise of the 45-day advance warning:
“To promote efficiency, OFCCP will no longer delay scheduling contractors for 45 days after the issuance of a CSAL. As of the effective date of this Directive, OFCCP may begin scheduling contractors upon the publication of the CSAL.” (emphasis added)
Editor’s Note:
- The September 11, 2020 CSAL is still active (see WIR 9/11/20)
- The last CSAL for Supply & Service Contractors was July 1, 2021 (see WIR 7/1/21)
- The last CSAL for Construction Contractors was September 1, 2021 (see WIR 9/1/21)
Timely Desk Audit Submission & Extensions for Extraordinary Circumstances
“… supply and service contractors must annually certify that they have developed and maintained complete AAPs in compliance with OFCCP’s requirements through its Contractor Portal.” (fn 8, omitted) (see our WIR “OFCCP’s New Emerging AAP Delivery Portal and AAP “Verification” Program: Much Ado About Nothing”)
- Given that OFCCP believes it will soon have Contractor Portal certifications in hand from contractors that the contractors have their AAPs on hand and ready to be delivered to OFCCP for audit, the Agency has signaled that it is going to insist on contractors delivering their AAPs within 30-days of the contractor’s receipt of OFCCP’s audit Scheduling Letter. This will now be the ninth OFCCP Director to announce a “get tough” policy on AAP timely receipt practices. Same song. Different verse.
- Here is what OFCCP said exactly: Contractors must “submit all AAPs and itemized listing data, including support data, within 30 calendar days.” (Fn 9, omitted)
- However, “Where a contractor needs additional time, OFCCP may grant an extension for extraordinary circumstances pursuant to the policies provided in 7(b)(ii)(b) below.” Now, when it is a contractor duty, OFCCP broke rank and decided to get specific and prescriptive in its Directive: Here are OFCCP’s examples to its Compliance Officers of “extraordinary circumstances” which may qualify for a contractor’s extension of time to deliver its AAPs for audit:
- “extended medical absences of key personnel;
- death in the immediate family of key personnel;
- localized or company-specific disaster affecting records retrieval such as a fire, flood, or computer virus;
- unexpected military service absence of key personnel; and
- unexpected turnover or departure of key affirmative action official.” (Fn 10, omitted)
The section references the Scheduling Letter FAQs on the OFCCP webpage.
Editor’s Note: There is always handwringing on both sides of this AAP delivery date question (at OFCCP and among busy contractor compliance personnel). However, it is all a waste of otherwise perfectly good anxiety which could be saved to worry about other real problems. It is all a worry for naught as to the exact AAP delivery date. This is for many reasons.
First, it is relatively rare that contractors need extra time to respond to OFCCP with their AAPs. But when contractors do need more time, it is for a good and sufficient reason which cannot be legislated away by the stroke of a pen at OFCCP seeking to dictate the impossible. Some contractors need more time than 30 days to respond to OFCCP’s audit Scheduling Letter because of poor timing relative to contractor “high-tide” leave periods (around the end-of-year holidays or the last week of summer before school starts in the Fall, etc.). However, the greatest issue inducing delayed response typically occurs when the contractor’s AAP is more than six months old and OFCCP is not requesting just the contractors on-the-shelf-AAPs but is also requesting reams of “updated data” described in 3-pages of 22 document requests known as the “Itemized Listing” and appended to OFCCP’s two-page audit Scheduling Letter. So, this is much ado about nothing: the contractor is going to work hard to gather, organize, and quality control check the data OFCCP is requesting, and OFCCP is going to grant the contractor more time when needed.
Second, OFCCP has no effective recourse regardless of when the contractor delivers its AAP and Itemized Listing Support Data to the agency. This is why this issue comes up over and over again in every administration like a bad penny. There is no financial penalty for a delayed contractor delivery. There is no reward or punishment. The only two things OFCCP can do is to ask its Solicitors to sue the contractor to debar it for failing to comply with OFCCP’s arbitrary data delivery deadline. (NOTE: OFCCP does not have injunctive authority, nor the authority to economically “fine” a contractor. Rather, OFCCP’s only tool is to debar the contractor,…but that takes both years to accomplish and a recalcitrant contractor (both) which refuses to comply). However, by the time the Solicitors got around to filing the Complaint, the contractor would have many months (or years) before that to deliver the delayed AAPs and Itemized Listing data response. Moreover, delivery of even a late AAP would purge (and thus lift) the Debarment Order, which would take the Solicitors years to obtain at any rate.
Alternatively, OFCCP thinks it can write up a Conciliation Agreement (“CA”) to require the contractor to supply its AAPs on time in the future. However, that CA would fail for two different reasons. First, OFCCP does not have injunctive authority. Second, OFCCP’s longstanding practice is to use CAs to resolve on-going problems not quickly corrected before or during OFCCP’s audit. CAs are to fix what’s broken and establish new contractor systems going forward. But, if the contractor has already fixed the problem, there is nothing for OFCCP to “correct” in the future. There is no need for a CA simply memorializing a transitory problem which no longer exists.
By the way, it was this very realization of OFCCP’s inability to enforce AAP submission deadlines which led OFCCP Director Shirley Wilcher (Clinton Administration) to think wistfully about the concept of “Term Debarments” for contractor procedural foibles…like not turning in AAP data in a timely manner. However, this idea failed for want of both a Presidential Amendment to the Executive Order, and/or Rules to implement any such sanction. Moreover, it would all be for naught, at any rate, as OFCCP debarments are NOT punitive (i.e., NOT punishments) for past misconduct. Rather, OFCCP debarments are available only to incent future compliance…which is why OFCCP debarments, once issued by the Administrative Review Board, cannot be enforced once the contractor agrees to comply with OFCCP’s Rules…including turning in an AAP to OFCCP however late. [For the lawyers reading this, OFCCP debarment is the administrative equivalent of “judicial civil contempt”…NOT “criminal contempt”: the person in civil contempt has the proverbial “keys to the courthouse door” to “purge” (get rid of) the contempt by agreeing to comply with the court’s order: i.e., the news reporter agrees to give up his/her source who was an eye-witness to the crime being prosecuted; the lawyer agrees to behave in the courtroom per the Judge’s instructions; the Trump guys agree to cough up their cell phone records and e-mails as to the June 6 riot, or whatever else is being investigated, etc.].
Practice Tip: Try to timely comply with OFCCP’s data requests on the schedule the agency requests, as per the usual. But if you cannot meet OFCCP’s requested deadline for whatever reason, simply politely advise OFCCP of the approximate date you can tender to OFCCP the information the agency has requested and go about your work. OFCCP will appreciate the projected date of performance so it can calendar the date you promise to next reply to the agency.
Key Takeaways
OFCCP reports that it will continue the use of the “Transparency Letter” and the periodic, unscheduled CSAL notice. (NOTE, we are not sure why OFCCP would continue the CSAL—which it has now gutted of any remaining purpose–other than that contractors do not like change and they do like this tool even as OFCCP has now rendered it obsolete). However, the 45-day delay in scheduling audits after the CSAL publishes is gone, gone, gone. Given the push to “require” contractors to certify their AAPs in the Contractor Portal, the Agency expects Contractors to present their AAP as required (within 30 calendar days) upon receiving an audit Scheduling Letter. There is no more automatic 30-day extension to submit hires. promotions, involuntary terminations, compensation, and other support data. However, worry about submitting data to OFCCP on any arbitrary or inconvenient schedule should be saved for other things in one’s work life deserving of worry. Make your best effort to comply with OFCCP’s arbitrary data delivery deadline but turn it in whenever you can reasonably get it done, whether early or late.