July 12, 2016Client Alert

The OFCCP’s Revised Scheduling Letter and NLRB Announcement Highlight Interagency Information Sharing

The Office of Management and Budget recently approved the Office of Federal Contract Compliance’s (OFCCP’s) use of its new Scheduling Letter and Itemized Listing through June 30, 2019. The new Scheduling Letter and Itemized Listing can be found here.

Most of the changes appear to be minor edits, but the changes describing the extent to which some information may or may not be considered confidential may have a big impact. The agency reports that its changes were intended to “strengthen the agency’s assurances of confidentiality for the information provided.” Previous Scheduling Letters stated that information provided by contractors would be treated by OFCCP as “sensitive and confidential,” and that disclosures would be made in line with the Freedom of Information Act. 

While the new Scheduling Letter refers specifically to laws governing the confidentiality of information with which OFCCP must comply, the (Freedom of Information Act, the Trade Secrets Act, the Privacy Act, and the 1987 Executive Order governing the disclosure of confidential commercial information), it does not reference the overall “sensitive and confidential” treatment of information cited in the prior Scheduling Letter. Rather, it highlights the OFCCP’s ability to share the information with other government agencies with which it has sharing agreements. The new Scheduling Letter states:

OFCCP may use the information you provide during a compliance evaluation in an enforcement action. We may also share that information with other enforcement agencies within DOL, as well as with other federal civil rights enforcement agencies with which we have information sharing agreements.

The revised Scheduling Letter is consistent with the OFCCP’s stated position that it would share information about violations which were discovered in the course of compliance reviews with other federal agencies. Whether this change in the proposed Scheduling Letter signals a more aggressive approach remains to be seen.  

Upon receipt of a Scheduling Letter and Itemized Listing, a federal contractor or subcontractor has 30 days to provide the lengthy list of required information. While the revised Scheduling Letter and Itemized Listing is not significantly different, it is worthwhile to review the information you as a covered federal contractor or subcontractor would be required to provide in a compliance review.

In a related vein, shortly after the approval of the new Scheduling Letter, the National Labor Relations Board (NLRB) announced that, beginning July 1, 2016, it would aid in the efforts of federal contractor compliance under the Fair Pay and Safe Workplaces Executive Order by requiring employers to post information related to all unfair labor practice complaints filed on or after July 1, 2016, including information about whether the employer is or has been a federal contractor. Notably the regulations implementing this Executive Order have not been issued and litigation is expected once they are issued. The intent of the NLRB is to create the federal database of “problem” employers and serves as a harbinger of other agency lists which will be created if the Executive Order is implemented. This information will be available to federal agency Labor Compliance Advisors that determine whether federal contractors are qualified to do business with the federal government. Despite the fact that the merits of unfair labor complaints have not yet been evaluated by an administrative law judge, these complaints must be posted to the federal database unless a contractor reaches a resolution in the case (such as a settlement) before the complaint is filed. 

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