April 19, 2018Client Alert

OFCCP Continues to Make Good on Promise of Transparency

Contractors checking the OFCCP webpage on April 18th received a welcome surprise – the agency posted a document titled “Methodology for Developing the Scheduling List Supply & Service Federal Contractors.” Until now the process for determining how contractors are scheduled for compliance reviews has felt like a secret along the lines of the formula for Coca Cola only less capable of being reverse engineered. While the agency has made clear that they were under no legal obligation to provide the information and that they will “revisit the decision” to make the methodology public each time the process changes, the publication on the 18th shows that the OFCCP is listening to contractor concerns about the agency and is willing to make changes.

Highlights of the document include:

  • The OFCCP starts compiling its scheduling list by searching the Federal Procurement Data System – Next Generation going back three years to identify companies holding federal contracts of $50,000 or more;
  • The agency then matches those records with the EEO-1 database and identifies the parent companies of the contract holders as well as any affiliated companies to create the available pool of establishments for potential review;
  • The OFCCP then winnows down the pool including removing:
    • small establishments (under 70 employees for locations holding direct contracts, under 100 employees for members of the corporate family),
    • independent subsidiaries (as determined using Lexis-Nexis Corporate Structure and Dunn and Bradstreet Family Tree) ,and
    • those locations, having completed a review in the past five years, or under a current conciliation agreement
  • Finally, lists are created for each district office with establishments randomly ordered and appended to the unscheduled establishments from the prior scheduling list.

Based on the OFCCP’s recent explanation of scheduling we suggest companies consider the following:

  • Review the federal contracting database to see if your company is listed as having had a federal contract in the last three years;
  • If you are a multi-establishment employer, review your affirmative action plan design, particularly how establishments of fewer than 50 people are combined into larger establishments and how employees working remotely are assigned to particular AAPs; and
  • Consider focusing more self-audit resources on establishments with more than 70 employees.
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