Employment Law Daily Recent updates to OFCCP documents
Thursday, July 28, 2016

Recent updates to OFCCP documents

Earlier this month, the OFCCP requested Office of Management and Budget (OMB) approval to update its complaint form and began using modified compliance audit documents that were recently approved by the OMB. According to a supporting statement published as part of a notice in the July 1, 2016 edition of the Federal Register (81 FR 43254- 43261), the OFCCP is seeking comments regarding its request for OMB approval of changes to update the OFCCP’s complaint form in light of recent changes to Executive Order (EO) 11246, A copy of the proposed revised form and corresponding instruction sheet is also included in the notice. Written comments are due by August 30, 2016. Although no private right of action exists under the three laws — Executive Order 11246, Section 503 of the Rehabilitation Act of 1973, and the Vietnam Era Veteran's Readjustment Assistance Act of 1974 — that are enforced by the OFCCP, any employee or applicant for employment with a government contractor may file a complaint with the Department of Labor alleging discrimination on the basis of race, color, sex, religion, national origin, and status as a qualified individual with disabilities or protected veteran. To facilitate the complaint process, the OFCCP provides a complainant with a complaint form (Form CC-4) entitled, “Complaint Involving Employment Discrimination by a Federal Contractor or Subcontractor.”  The OFCCP investigates the complaint but retains the discretion whether to pursue prosecution. In appropriate circumstances, the OFCCP may refer the complaint to the EEOC pursuant to a Memoranda of Understanding a joint regulation between the two agencies. In its current Information Collection Request (ICR), the OFCCP is seeking approval of the revised complaint form and accompanying instructions page to reflect two amendments to EO 11246: (1) EO 13672 (79 FR 42971- 42972), which added “sexual orientation” and “gender identity” as protected bases, and (2) EO 13665 (79 FR 20749-20750), which protects any applicant or employee who inquires about, discusses, or discloses compensation. The agency reports in the supporting statement that it received 790 complaints in fiscal year (FY) 2013, 699 complaints in FY 2014, and 769 complaints in FY 2015. Therefore, on average, the OFCCP receives about 753 complaints annually. OMB approval for the current version of the form (OMB Control No 1250-0002) expires on August 31, 2017. Modifications to audit documents now in force. Also on July 1, the OFCCP announced that it would begin using newly revised audit documents that were approved by the Office of Management and Budget (OMB) on June 29, 2016. According to the OFCCP, it made clarifying edits to the Scheduling Letter and accompanying Itemized Listing that the OFCCP uses to initiate supply and service (non-construction) contractor compliance evaluations to ensure contractors understand the information being requested and to strengthen the agency’s assurances of confidentiality for the information provided. In addition, the OFCCP has also included language in the renewed Scheduling Letter that provides a more complete description of its investigatory and enforcement processes. The revised documents are available on the RegInfo.gov website (OMB Control Number 1250-0003). OMB authorization for the revised documents expires on June 30, 2019.

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