On Tap at OFCCP: Posting of CSALs and Focused Reviews

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Coffee, Check! Keys, Check! On the OFCCP CSAL List? Check Online!
Get ready to have a legitimate business-related reason to increase your screen time! On February 22, 2019, the Office of Federal Contract Compliance Programs announced by email bulletin that the agency will post the next round of Corporate Scheduling Announcement Letters online — instead of mailing the letters, as it has done for years. In fact, as contractors have come to know the acronym, "CSAL," as meaning Corporate Scheduling Announcement Letter, the OFCCP's announcement redefines the acronym as Corporate Scheduling Announcement List (CSAL).

According to the OFCCP's online Questions and Answers, which have not yet been updated to align with their recently-announced online CSAL posting protocol, in the past a contractor could have confirmed whether it should have received a CSAL by reviewing the CSAL lists from FY 2017 to the present, made available in the OFCCP's online FOIA Library. The OFCCP's announcement does not address the basis for their change in protocol.
 The information in the CSAL list is not covered by the FOIA exemptions or exclusions.
The OFCCP has issued CSALs since 2004. Although contractors have come to rely on the mailed letter as notice that they may be selected for a compliance evaluation, the letters are merely a courtesy. The OFCCP is not required by law to provide notice ahead of the actual Scheduling Letter approved by the Office of Management and Budget (OMB) that officially starts the clock and begins the evaluation process. The OFCCP is, however, required by law to post the CSAL list in an accessible electronic format because it is frequently requested and it is a federal record that is not covered under any of the Freedom of Information Act (FOIA) exemptions. Specifically, the FOIA of 2016 requires federal agencies to "make available for public inspection in an electronic format" records "that have been requested 3 or more times" and are "likely to become the subject of subsequent requests." The information in the CSAL list is not covered by the FOIA exemptions or exclusions.

Contractors may surmise that OFCCP is employing a cost-saving measure by eliminating the mailed letters. The OFCCP mailed 1,000 CSALs to contractor establishments in February 2018, followed by another round in September 2018. Although that is a lot of letters, the cost of certified mail postage for even 3,000 CSALs is insignificant in comparison to the OFCCP's multi-million dollar budget, even reduced as it was for FY 2019. Rather, "going green" with an online list could be the OFCCP's efforts at "improving organization efficiency and effectiveness by modernizing" an aspect of "the agency's operational model." This notion was proposed in 2018 in the Budget Appendix to the OMB's 2019 budget proposal that suggested reducing the OFCCP's budget by 12.5%.

The agency's February announcement informs contractors that the 2019 list of CSALs will be posted online in the OFCCP's FOIA Library in mid-to-late March 2019. In addition, the OFCCP will issue a subsequent announcement when the list is actually posted. The OFCCP also encourages contractors to subscribe to OFCCP Email Updates to receive timely notification of the CSAL posting, as well as other compliance assistance resources in real time. If opposed to an influx of OFCCP-related emails, contractors should be mindful and diligent about regularly checking, at least through the end of the month, the OFCCP's FOIA Library for the 2019 CSAL. Bookmark the page, and visit it regularly!
 
Section 503 Focused Reviews Included in Next Round
Craig Leen, the OFCCP's new Director, has made known his intent to more than triple the number of compliance evaluations conducted in 2019, in addition to targeting Section 503 compliance with focused reviews. The OFCCP's February announcement on posting CSALs also informed contractors that the "new list" will include establishments selected for Section 503 focused reviews and "compliance checks" under the agency's Directive 2018-07, Affirmative Action Program Verification Initiative Directive. As a reminder, the OFCCP issued Directive 2018-04 on August 10, 2018. The purpose of this Directive is to require "that a portion of future scheduling lists include focused reviews as to each of the three authorities that the [OFCCP] enforces," including Section 503. The OFCCP's February announcement did not reference VEVRAA or Executive Order 11246, the other two authorities the agency enforces.

In November 2018, the OMB approved the OFCCP's "non-material change request" for a Scheduling Letter for Focused Reviews – a new version of the OFCCP's Scheduling Letter that will be sent to contractors selected for focused reviews. Key takeaways of this "revised" Scheduling Letter include:
 
  • The Focused Review Scheduling Letter contains no additional format requirements. Contractors may be comforted in finding that the letter is a refreshingly simplified, if not a pared-down, version of the standard OFCCP Scheduling Letter and Itemized Listing.

  • As contractors would expect, the OMB-approved Focused Review Scheduling Letter includes requests for Section 503 information ONLY, with the limited exception of requesting two specific items that do not necessarily pertain to Section 503 compliance requirements, because they contain only race and gender information: (1) the contractor's Executive Order 11246 affirmative action plan; and (2) three years of EEO-1 reports. The EO 11246 AAP does not need to include itemized listing data, and it is not clear why the agency has included the request for the EO 11246 AAP, because a separate item in the letter requires the submission of the "formation of job groups" on which the Section 503 utilization analysis would be based.

  • The OMB-approved Focused Review Scheduling Letter has a short shelf life with a June 30, 2019 expiration date. Contractors should not be hopeful that the expiration date indicates focused reviews will go away. Rather, the standard OFCCP Scheduling Letter, which went into effect in July 2016, also expires on June 30, 2019. The OMB must review and approve its renewal per the agency's regular three-year review process. Thus, it is likely that the OFCCP will submit both letters at the same time for review and approval, putting them on the same timeline for effective date and expiration date.

In addition, according to the OFCCP's "non-material change request" to the OMB, the OFCCP will not conduct more compliance evaluations as a result of the focused reviews, "as they will not be conducted in addition to, but in lieu of, [standard] compliance reviews in a number of instances."

In sum, ‘tis the season for compliance reviews. Contractors should proactively monitor the OFCCP's website, consider signing up for OFCCP's Email Updates, update those AAPs, and start – if you have not already – reviewing your hiring and compensation data and shoring up your good faith efforts.