Jackson Lewis has learned that the Office of Federal Contract Compliance Programs will continue using Corporate Scheduling Announcement Letters (CSALs). Patricia Shiu, OFCCP’s new Director, has shared that OFCCP will send CSALs to federal contractors at least for the current OFCCP fiscal year, which runs from October 1, 2009 through September 30, 2010.
OFCCP will communicate this development to federal contractors shortly. Director Shiu did not indicate when OFCCP would send the CSAL. The OFCCP typically has sent them in November (and a second round of letters in the following Spring) during each of the past few years.
About the CSAL Process
CSALs give companies advanced notice that multiple establishments are targeted for audits. OFCCP likely will continue to address the CSAL to the “Chief Executive Officer” or other designated point of contact for each employer. The CSAL includes a list of the multiple locations slated for OFCCP audit during the fiscal year. In the past, OFCCP identified facilities using its Federal Contractor Selection System or separate federal contractor databases.
The CSAL does not initiate an actual audit, but rather identifies for employers the locations that likely will undergo audits during the fiscal year. Only after the employer receives an audit letter must it respond by submitting its affirmative action plan to OFCCP within 30 days.
Excluded Facilities
Facilities excluded may be excluded from the CSAL process for several reasons, including locations that:
- are the subject of a Corporate Management Compliance Evaluation (CMCE), currently undergoing a compliance review;
- are covered by a Functional Affirmative Action Plan (FAAP) agreement;
- have been the subject of a compliance audit within the past two years;
- have received either the Secretary of Labor’s Opportunity Award or an Exemplary Voluntary Efforts Award within the last three years.
Facilities scheduled pursuant to the receipt of stimulus funds (American Recovery and Reinvestment Act of 2009, or ARRA, audit) also may be excluded from the CSAL.
Unclear Whether OFCCP will Limit Number of New Reviews to 25 per Year per Employer
In the past, the OFCCP limited the number of new audit letters a single contractor could receive to 25 per OFCCP fiscal year. It is unclear whether OFCCP will continue this practice. If it does, employers should note that CMCEs, FAAP audits, contract pre-award audits, ARRA audits, audits initiated as a result of conciliation agreement monitoring or as a result of a credible report to OFCCP of an alleged violation of laws or regulations are not counted towards this limit. OFCCP also has indicated that for a number of reasons (e.g., establishments not clearly associated with a parent corporation), companies may receive compliance reviews of establishments not listed on the CSAL.
What Now?
- Corporate human resources and in-house counsel should immediately advise the President’s or Chief Executive Officer’s office to be “on the look-out” for any letters from OFCCP so the employer can immediately begin to focus its resources on any impending compliance reviews.
- If you are a Jackson Lewis client and receive a CSAL, contact the affirmative action attorney with whom you regularly work to discuss the strategic steps that should be taken now to prepare for the likely compliance reviews. If you receive an actual scheduling notice, contact the affirmative action attorney with whom you regularly work to begin immediate preparation of the compliance review submission.
- Receipt of the CSAL provides an excellent opportunity to review closely your affirmative action plans for those facilities listed before OFCCP initiates compliance audits. Employers should pay particular attention to adverse impact trends and pay disparities. Investigating such trends now will allow employers to address potential vulnerabilities prior to OFCCP involvement. As many of you know, OFCCP has been aggressively investigating adverse impact and pay disparity “red flags” that may lead to substantial monetary settlements.
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For more information on this OFCCP development or affirmative action compliance in general, contact an attorney in the Affirmative Action and OFCCP Diversity Planning practice group.
