On October 2, 2024, U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) published a new Construction Scheduling Letter and Itemized Listing, OMB NO. 1250-0001 (“Construction Scheduling Letter”). The Construction Scheduling Letter notifies federal construction contractors and subcontractors that they have been selected to undergo a construction compliance review under Executive Order (E.O.) 11246, Section 503 of the Rehabilitation Act of 1973 (“Section 503”) and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA). Construction contractors and subcontractors whose sole coverage comes from federally assisted construction contracts and subcontracts are not covered by Section 503 or VEVRAA. Section 503 covers federal construction contractors with a direct government contract in excess of $15,000, and VEVRAA applies to federal construction contractors with a direct government contract of $150,000 or more.

The new Construction Scheduling Letter applies to any construction contractor that is scheduled for a review on or after October 1, 2024. OFCCP schedules construction compliance reviews by identifying one of two geographic area categories, Standard Metropolitan Statistical Areas (SMSAs) and Non-Standard Metropolitan Statistical Areas (Non-SMSAs). Within each SMSA or Non-SMSA, there is a list of county(s) or county equivalent(s) that make up the geographic area. When OFCCP evaluates construction contractors, OFCCP looks at all of the contractor’s federal, federally assisted, and non-federal construction projects located across all counties in the scheduled geographic area.¹

The first construction scheduling letter was implemented in July 2021 and expired July 31, 2024. The new Construction Scheduling Letter will expire July 31, 2027. OFCCP claims that the new Construction Scheduling Letter includes the following benefits – improved clarity, more efficient and robust analysis, greater uniformity in OFCCP data requests, and alignment with recent changes made to the supply and service scheduling letter. However, the letter acknowledges that the changes increase the reporting burden for direct federal construction contractors from 27 to 36.4 hours and the burden on federally assisted construction contractors from 14 to 19.7 hours. In all cases OFCCP has substantially underestimated the amount of time required to respond to the Construction Scheduling Letter.

Key revisions to the E.O. 11246 section of the Itemized listing include:

1. For Item 1, OFCCP added a request for contractors to identify the start and end dates (or anticipated end dates) of each construction project and to distinguish between federal and federally assisted projects.

2. For Item 2, OFCCP purports to now require contractors to produce information on “employees involved in the supervision, inspection, and other on-site functions incidental to the actual construction” in addition to information on construction trade employees. Whether OFCCP is actually entitled, under its rules, to demand information on non-construction trade employees as part of a construction compliance review is an unresolved question. The revised scheduling letter also seeks more and more granular information regarding pay and hours worked.

3. For Item 3, OFCCP again purports to require contractors to produce information on “employees involved in the supervision, inspection, and other on-site functions incidental to the actual construction” in addition to information on construction trade employees. Once again, OFCCP’s authority to request information on non-construction trade employees is unclear. The Construction Scheduling Letter also added a new subpart, (d), seeking information about layoffs, to the previous requests for information on applicants, hires, promotions, recalls, and terminations. The revised letter also adds language indicating that applicants include “walk-ins, electronic applications, and referrals from unions and/or employment and recruitment services.”

4. For Item 4, instead of just seeking a copy of the contractor’s Equal Employment Opportunity (EEO) Statement, the Construction Scheduling Letter now also seeks policies on antiharassment, EEO complaint procedures, policies on employment agreements that impact employees’ equal opportunity rights and complaint processes, and other EEO policies. This is similar to the current Supply and Service Scheduling Letter published last year.

5. For Item 5, OFCCP clarifies that it seeks records covering the preceding 12 months showing that the contractors included the “Standard Federal Equal Employment Opportunity Construction Contract Specifications” and the “Notice of Requirement for Affirmative Action to Ensure Equal Employment Opportunity” in its construction subcontracts exceeding $10,000.

6. Items 6 through 15 are largely unchanged. However, OFCCP did revise paragraph 15 to purportedly require contractors that do not have written reasonable accommodation policies to explicitly state that in their response.

7. Item 16 is a new addition to the Construction Scheduling Letter. Item 16 requests contractors to identify all tests and selection procedures used in the hiring process, including technology-based tests and selection procedures (e.g., artificial intelligence, algorithms, automated systems), as well as any other non-technology-based tests and selection procedures (e.g., written tests, work simulations, structured interview questions) and provide evidence that these tests and selection procedures were validated where necessary. This new request reflects the interest that OFCCP has been taking in the potential impact of artificial intelligence programs on employment actions.

8. Item 17 is another new addition to the Construction Scheduling Letter. Item 17 requests contractors provide evidence that they monitored personnel and employment-related activities during the preceding year to ensure that seniority practices, job classifications, work assignments and other personnel practices did not have a discriminatory effect and that the EEO policy and the contractors’ EEO obligations were being carried out.

Key revisions to the Section 503 and VEVRAA sections include:

1. OFCCP has added a specific instruction at the beginning of each of these sections of the Itemized listing advising contractors that they are not required to submit information in response to these sections if their “company’s sole contract coverage comes from federally assisted construction contracts.”

2. Item 2 is revised to seek documentation showing the contractor provided notice of the company’s EEO policy to unions and requested their cooperation in assisting the company in meeting its EEO obligations during the preceding 12 months, as provided in 41 CFR 60-741.44(g)(2). The prior version of this Item required documentation for a different time period: the prior AAP year (rather than the past 12 months) and also required six months of additional data if the scheduling letter was received more than six months into the current AAP year. OFCCP no longer seeks documentation with regard to community organizations in this Item.

3. Item 3 is revised to seek a description of the assessment of their personnel processes, any impediments to equal employment opportunity identified through the assessment, and any actions taken, including modifications made, or new processes added, as a result of the assessment. This mirrors the language in the current Supply and Service Scheduling Letter.

4. Item 5 has been revised to provide greater detail regarding the requested documentation of outreach and positive recruitment activities reasonably designed to effectively recruit qualified individuals with disabilities and protected veterans, and an assessment of the effectiveness of those efforts. In addition, the request now seeks information covering the first six months of the current AAP year in the event that the contractor was six months or more into its current AAP year on the date it received the Construction Scheduling Letter.

5. Item 8 in the Section 503 portion of the Itemized Listing, which seeks the analysis of the utilization of individuals with disabilities has been substantially expanded. Added to this item is a request for a description of the steps taken to determine whether and where impediments to equal employment opportunity exist, including an assessment of personnel processes, the effectiveness of the outreach and recruitment efforts (if different from Item 5), the results of an affirmative action program audit, any other areas that might affect the success of the affirmative action program, and a description of action-oriented programs developed and executed to correct any identified problem areas.

Another change in the Scheduling Letter is the deletion of prominent language advising contractors that:

DOL regulation at 41 CFR § 60-1.20(f) allows a contractor that is concerned with the confidentiality of personally identifiable information such as lists of employee names, reasons for termination, or pay data, to use alphabetic or numeric coding or an index. The coding or index for pay and pay ranges must be consistent with the ranges assigned to each job group for purposes of the compliance evaluation.

Although there has been no change in the underlying regulation, this information that is helpful to contractors has now been cut back and relegated to a footnote to Item 3(b) in the Executive Order Section stating only: “The contractor may submit an employee ID rather than an employee name, as provided in 41 CFR 60-1.20(f).”

OFCCP has also changed language “encouraging” contractors to submit employment activity in an electronic format to “requesting” that the data be submitted “in an electronic database that is readable and, in a comma-separated values (.csv) or Excel (.xls and .xlsx) file format.”

In conclusion, federal and federally assisted construction contractors and subcontractors should carefully review the Construction Scheduling Letter and OFCCP’s Construction Compliance Frequently Asked Questions. Contractors and subcontractors on one of the Construction Corporate Scheduling Announcement Lists that have not received their scheduling letter yet should further confirm compliance with Executive Order 11246’s 16 Affirmative Action Steps and any applicable requirements under Section 503 or VEVRAA, which may include obligations to maintain affirmative action plans covering construction sites or, at least, the individuals employed at those sites. In addition, federal and federally assisted construction contractors should review the compliance practices at those facilities and log and assess recruitment and outreach practices for year-over-year efficacy. When in doubt, contractors and subcontractors should work with experienced counsel to understand their obligations so as to be audit ready.