OFCCP Issues New Batch of Advance Audit Notices

Federal ProcurementOn September 7, 2018, the Office of Federal Contract Compliance Programs (OFCCP) mailed Corporate Scheduling Announcement Letters (CSALs) to 750 contractor and subcontractor establishments.  OFCCP sends CSALs to service and supply contractors as a courtesy to let them know that one or more of their establishments may be scheduled for a compliance evaluation.

Receipt of a CSAL does not mean that a contractor’s establishment has been scheduled for an audit.  A contractor must receive a scheduling letter before one or more of its establishments are audited, but a CSAL is typically a precursor to the contractor receiving a scheduling letter.

OFCCP said that it will send scheduling letters within 45 days of issuing this round of CSALs, which will be on or about October 22, 2018.  Contractors have 30 days from the date they receive a scheduling letter to provide OFCCP their affirmative action plans (AAPs) and other items requested in the itemized listing attached to the scheduling letter.

OFCCP noted that the new batch of CSALs:

  • Included 445 companies, 69 Corporate Compliance Management Evaluations (CMCE), and 66 FAAP functional units;
  • Excluded universities because of OFCCP’s current workload;
  • Did not schedule contractors for focused reviews under OFCCP’s new Directive 2018-04; and
  • Did not include contractor establishments where a review (or a progress report monitoring resulting from a conciliation agreement or consent decree) concluded within the last five years.

What Should Contractors Do?

  • Notify Relevant Staff to Watch for CSALs: CSALs are sent to the HR Director (or designated point of contact) at the establishment on OFCCP’s scheduling list. As these individuals are not always responsible for the contractor’s affirmative action compliance (or even aware of the contractor’s affirmative action obligations), contractors should notify HR personnel and other designated points of contact at their establishments to keep a lookout for those notices in the next few weeks.
  • Prepare for Audit upon Receipt of CSAL: Contractors that receive CSALs should take advantage of the advance notice by immediately reviewing their affirmative action practices in preparation for a potential audit. The review should include an assessment of the contractor’s AAPs, outreach and recruitment efforts, compliance with notice posting and job listing requirements, accommodations, and, most importantly, explanations and defenses to potential indicators of discrimination relating to the contractor’s hires, promotions, terminations, and compensation.
  • Do Not Expect Extensions for Responding to the Scheduling Letter: Historically, OFCCP has been willing to extend the 30-day period to respond to the scheduling letter. OFCCP has warned contractors that, for this scheduling round, it will only provide an extension of the 30-day period for data supporting the AAP and only if: (1) the contractor requests the extension before the 30-day period expires; and (2) the contractor timely submits its AAPs.
  • No CSAL Does Not Mean No Audit: Contractors should not assume they are safe merely because they have not received a CSAL. OFCCP is not required to send CSALs.  A contractor may be scheduled for a compliance review even if it did not receive a CSAL.  A contractor may also be subject to a compliance review at a location that did not receive a CSAL.  As a result, contractors should consider assessing their affirmative action compliance over the next 45 days to determine whether they have any significant issues that need to be addresses before OFCCP sends scheduling letters next month.

Andrew Turnbull represents companies on a broad range of labor and employment litigation and counseling matters. He is of counsel in Morrison & Foerster’s Northern Virginia office and can be reached at aturnbull@mofo.com with any questions regarding this alert.