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OFCCP Audit Trends and Supplemental Requests

Vickie LeNormand

Discussing OFCCP's audit requests post-submission

Under the new OFCCP scheduling letter and itemized listing that was finalized in 2014, contractors are now required to submit double the number of items from 11 to 22. Prior to these changes, contractors could expect multiple requests for supplemental or supporting documentation. However, with the recent Disability and Veteran regulatory changes, contractors can now expect more requests around documentation of compliance with the new requirements; as well as an emphasis on outreach and recruitment for protected veterans and individuals with disabilities.

Although contractors may be audited by compliance officers within different OFCCP regions or district offices; we notice trends of agency requests across regions. The list below containing the most common and current supplemental requests from the OFCCP should give insight on what to expect.

Copy of the most recent VETS-100A (now VETS-4212) report - While not in the Itemized Listing, the scheduling letter states in the first paragraph that they will verify compliance with the annual VETS filing. (Suggestion: Submit this with the Section 4212 AAP to have one less additional request)

Explain how disabled applicants may apply for jobs on-line - The OFCCP is looking to see if there is a clear notice posted to the company’s career site regarding how to request an accommodation to apply for a job opening. (Suggestion: submit screen shots of the company’s career site showing the accommodation notice with Item #20 “Reasonable Accommodation Policy and Requests” of the initial submission)

Copy of Policy with Respect to Religion/National Origin - In addition to the request of a copy of the policy, we’ve seen this accompanied by a listing of requests received for accommodations of religious observance.

Copy of Blank Employment Application - If the company’s employment application is online, be aware that this may take multiple screenshots in order to show the full employment application.

Copy of the Self-Identification Forms - In addition to the forms, explain how and when applicants are given the opportunity to self-identify.

Copies of Job Postings or Advertisements - OFCCP is looking for compliance with the new EOE tagline (Veteran and Disabled spelled out).

Evidence of listings with the state employment office - Examples of documentation include copies of letters notifying the state of job openings, faxes or emails of job orders, screen shots of posting directly to the state job bank or a report showing that the opening was sent via direct feed and delivered to the ESDS.

Provide documentation of outreach and positive recruitment for Protected Veterans and Individuals with Disabilities - With the regulatory changes, the OFCCP provides many suggested resources on their website. It’s not expected that a contractor would utilize all of those resources; however, the OFCCP will expect the contractor to have reached out to multiple sources targeting the Veteran and Disabled community. Contractors can show compliance by submitting a list of recruitment sources utilized for veterans and individuals with disabilities, evidence of any Veteran/Military Job fairs attended and documentation of communication or contact with local Veterans Representative and their local Department of Vocational Rehabilitation Office.

Copy of Purchase Order or Sub-contract showing the EEO/AA Clause was included - With the recent regulatory changes, the OFCCP is looking to see that the EEO/AA clause has been updated to the new verbatim language and in bold font.

Copy of Employee Handbook - The OFCCP is specifically looking for policies pertaining to duty related leave for veterans, maternity leave, FMLA, and disability leave. We’ve seen this as a separate request as well. Also, some offices have requested a listing of employees who requested leave during the audit period.

Copies of any complaints filed with EEOC, US DOL VETS or the state human rights agency - Specifically, the OFCCP is looking for complaints alleging discrimination on the basis of race, ethnicity, gender, disability or Veterans status, and the current status of each complaint.

Documentation demonstrating compliance with EO 13496 - Specifically, posting of the notice of employee rights under the National Labor Relations Act and the inclusion of notice of EO 13496 obligations in subcontracts.

Documentation of notification to vendors and subcontractors of their AAP obligations - Previously, the regulations stated that contractors “should” send written notification to vendors and subcontractors. With the regulatory changes, the wording has been updated to contractors “must” send written notification to vendors and subcontractors. The OFCCP is looking for copy of the communication or letter and the method of how it was completed.

Request a phone interview to discuss company’s compensation policy - Contractors now have to submit raw, employee-level compensation data for Item # 19 of the scheduling letter. The next request is to schedule a phone interview to gather insight into the company’s compensation administration. Expect that the OFCCP will ask for written compensation policies/guidelines, who is involved in determining the overall compensation for the company, and how starting salary is determined. Anytime the OFCCP schedules a phone interview, they will type up a summary of the conversation to send to the contractor for approval.

After the initial response is submitted (22 items), the additional audit requests can come as early as the next few days or weeks, or months later, depending on OFCCP’s office current workload. Be aware that the OFCCP typically requests a response within 5 to 10 calendar days for additional information. We have seen the OFCCP grant requests for extra time to submit the additional information, especially when the request is for 10 or more items. Also, submitting a partial response by the due date and explaining how much longer you will need to pull the remaining items has shown to be acceptable. The above list is not all-inclusive, but hopefully it allows contractors to better prepare themselves under the revised regulations and the new scheduling letter.

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