OFCCP Publishes New FY 23 Corporate Scheduling Announcement List

Seyfarth Synopsis: The Office of Federal Contract Compliance Programs (“OFCCP”) issued its FY 2023 Corporate Scheduling Announcement List (“CSAL”) today. This list provides advance notice of 500 compliance reviews, which OFCCP may begin scheduling immediately.  Federal contractors and subcontractors should review the list to determine whether they are likely to be the subject of one or more of these upcoming compliance reviews.

The Office of Federal Contract Compliance Programs (OFCCP) has posted its FY 2023 Corporate Scheduling Announcement List (CSAL) identifying the supply and service contractors on the audit scheduling list for 2023. The list is comprised of 500 federal contractor and subcontractor establishments for the following types of compliance evaluations:

• 452 Standard Establishment Reviews
• 24 Corporate Management Compliance Evaluations (CMCE)
• 24 Functional Affirmative Action Program (FAAP) Reviews

Federal contractors should immediately review the CSAL because it serves as the only advance notification to contractors of upcoming audits. OFCCP has confirmed that any unscheduled audits from prior lists will still proceed as planned.

How Were Contractors Selected For Audit?

OFCCP updated its Scheduling Methodology for Developing the Supply & Service Scheduling List for the FY 2023 CSAL. Of particular note, when populating the pool of federal contractors and subcontractors from which to select for review, OFCCP stated that it focused on federal contractors and subcontractors that were required to maintain an Affirmative Action Program (AAP), but did not complete their mandatory annual certification in the OFCCP Contractor Portal before December 1, 2022.  Nonetheless, we are already hearing from contractors that were included on the CSAL who did certify their compliance before the identified deadline.  From the pool of contractors that were the intended focus, they narrowed the list to:  

• For Establishment Reviews, contractors with at least 200 employees in the identified establishment;
• For CMCEs, headquarters facilities with at least 1,000 employees; and
• Any establishments or functional units that were not: (1) currently under review, (2) currently in a monitoring period pursuant to a conciliation agreement; (3) currently within the exemption period following a closed review; (4) currently pending scheduling for review from a prior scheduling list; or (5) exempt through an active separate facilities waiver.

Then, when determining which of those contractors and subcontractors to select for review, OFCCP:

• Selected the establishments and CMCEs with the highest employee counts in each District Office;
• Did not select more than four establishments of any parent company;
• Selected up to five CMCEs per region; and
• For FAAP reviews, selected the four functional units with the highest employee counts in each region.

Per OFCCP’s Corporate Scheduling Announcement List (CSAL) Frequently Asked Questions, contractors should contact OFCCP’s Scheduling Mailbox (OFCCP-DPO-Scheduling@DOL.gov) if an establishment address is incorrect, the establishment has closed, or if the contractor believes OFCCP should not have selected the facility for audit pursuant to the published Scheduling Methodology.

What Should You Do If One (Or More) of Your Establishments Are on the List?

Act now! Per OFCCP Directive (DIR) 2022-02 | Effective Compliance Evaluations and Enforcement, OFCCP may begin scheduling contractors immediately upon the publication of the CSAL, and the previous 45-day grace period no longer exists. A compliance evaluation will not officially commence until OFCCP sends a contractor a notice using the Office of Management and Budget (OMB)-approved Scheduling Letter. It has been OFCCP’s general practice for the local District Office to first reach out to the federal contractor to obtain the contact information for the proper person to receive the Scheduling Letter, but that may not occur in all cases.

A contractor will have 30 days to submit its affirmative action programs (AAPs) and support data upon receipt of the Scheduling Letter, with extensions only for “extraordinary circumstances.” As such, advance preparation will be key, including: (1) identifying internal resources for supporting the audit; (2) updating and reviewing the establishment’s AAPs, adverse impact analyses, outreach efforts, compensation data, and progress toward goals; (3) considering the feasibility of conducting a partial or full mock audit of the establishment; and (4) consulting  with counsel about the best approaches for self-audits and whether some or all of the review should be conducted under attorney-client privilege.

Finally, while OFCCP’s proposed revisions to the Scheduling Letter have not yet been approved, the current Scheduling Letter expires on April 30, 2023. So contractors scheduled for a compliance review after that date could be responding to a much more extensive Scheduling Letter. With the notice and comment period closing today, it is still unknown which proposed changes, if any, will be approved. Thus, as a best practice, contractors should also be prepared to address these changes should they be approved.

If you have questions about the CSAL or affirmative action compliance, please contact the Seyfarth attorney with whom you work or any attorney in Seyfarth’s People Analytics Group.