Requesting Extensions to Submit AAP(s) and Supporting Data

  1. What is OFCCP’s policy for approving a request for an extension to submit the affirmative action programs (AAPs) and support data in response to the Scheduling Letter and Itemized Listing?
  2. What does OFCCP consider to be 'extraordinary circumstances' allowing for additional extensions?

Partial Year Data and Analysis

  1. Do contractors have to compute and submit partial year totals in order to respond to items 9 and 13 in the Itemized Listing that request documentation of the computations or comparisons called for in the Section 503 regulations at 41 CFR 60‐741.44(k) and in the VEVRAA regulations at 60‐300.44(k)?
  2. Do contractors have to perform and submit a partial year analysis evaluating their utilization of individuals with disabilities in order to respond to item 10 in the Itemized Listing request seeking information that reflects their current year utilization progress?
  3. What does OFCCP consider to be a contractor’s "current" AAP?
  4. If the contractor is more than six months into its current AAP year when it receives a Scheduling Letter and Itemized Listing, how much additional updated data must it provide to OFCCP?

Compensation Data

  1. Where can contractors find information about the support data they must submit on their compensation policies and practices?
  2. Item 19 refers to providing compensation data for the employees reported in the workforce analysis. My company’s AAP includes an organizational display rather than a workforce analysis. Do we have to start preparing a workforce analysis?
  3. How should contractors measure compensation under the Scheduling Letter OMB reauthorized in 2014?
  4. Does the Scheduling Letter still permit contractors to submit aggregate compensation data for employees?
  5. Which employees must the contractor include in the data?
  6. What additional information must the contractor include with the individual‐level compensation data?
  7. Can a contractor submit data on additional factors that affect employee compensation?
  8. What additional documentation on compensation should contractors submit?
  9. Must the contractor provide all requested compensation data electronically?
  10. Can contractors submit the requested compensation data with identifying numbers in lieu of providing employee names?
  11. What is the time‐frame for the other compensation or adjustments to salary?
  12. The submission requires hire data on each employee record. Should the hire date reflect the original hire date, re‐hire date (in case of an employee that had left and was re‐hired), or a service date?
  13. The new Itemized Listing requires support data to be provided in five specified race/ethnicity categories: African‐American/Black, Asian/Pacific Islander, Hispanic, American Indian/Alaskan Native, and White. May contractors submit their data using the seven race/ethnicity categories used to submit EEO‐1 reports to the EEOC?

What is OFCCP’s policy for approving a request for an extension to submit the affirmative action programs (AAPs) and support data in response to the Scheduling Letter and Itemized Listing?

The Scheduling Letter and Itemized Listing is the OMB-approved letter OFCCP sends to start the evaluation process and to request submission of specific contractor records.  Upon receipt, a contractor is required to submit its AAPs and supporting data within 30 days.  (See, 41 CFR 60-1.20(e), 60-300.40(d), 60-741.40(c)).  To facilitate a timely submission, OFCCP will contact the contractor within 15 days of the contractor's receipt of the Scheduling Letter and Itemized Listing to establish a primary point of contact for the evaluation, offer technical assistance on OFCCP requirements, and explain allowable extensions for the AAPs and supporting data.

The agency grants one automatic 30-day extension if the company timely proffers the AAP narrative (non-data portion).  When requesting an extension, the agency still strongly encourages initial submission of as much of the AAP and support data as the contractor has ready because a more extensive submission allows the agency to start the review sooner, decreasing the total time of the audit. 

The contractor receives the automatic 30-day extension for AAP support data provided that 1) the contractor requests the extension prior to the initial 30-day due date for the AAPs and 2) the contractor timely submits the AAP narrative (non-data portion) within the initial 30-day period after receiving the Scheduling Letter and Itemized Listing.  See Directive 2018-08, Transparency in OFCCP Compliance Activities.

When an extension is requested after the submission for the AAPs has passed, OFCCP generally will not allow extensions.  OFCCP, however, may grant such extensions in the event of extraordinary circumstances.  Failure to submit AAPs and/or supporting data timely, with approved extensions, will result in the issuance of a Notice to Show Cause why OFCCP should not initiate enforcement proceedings.  During this period, the contractor will have an additional 30 days to provide the AAPs and supporting data in response to the Notice to Show Cause.  A procedural Notice to Show Cause for failure to submit AAPs and/or supporting data in a timely fashion does not require OFCCP National Office approval.

Please note, the automatic extension for AAP support data discussed here is separate from the 30-day automatic extraordinary circumstances extension being provided because of the pandemic. 

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What does OFCCP consider to be 'extraordinary circumstances' allowing for additional extensions?

The following non-exhaustive list provides examples of the types of circumstances that OFCCP may consider extraordinary.

  • Extended medical absences of key personnel; 
  • Death in the immediate family of key personnel; 
  • Localized or company-specific disaster affecting records retrieval such as a flood, fire, or computer virus;
  • Unexpected military service absence of key personnel;
  • Unexpected turnover or departure of affirmative action official; and
  • State of emergency as declared by the federal government or the governor of the state where the contractor is located that affects the contractor's ability to conduct its normal business operations.

Additionally, OFCCP may find extraordinary circumstances exist that warrant broad-based extension periods common to a significant number of contractors, such as in the event of a global pandemic.

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Do contractors have to compute and submit partial year totals in order to respond to items 9 and 13 in the Itemized Listing that request documentation of the computations or comparisons called for in the Section 503 regulations at 41 CFR 60‐741.44(k) and in the VEVRAA regulations at 60‐300.44(k)?

The regulations at 41 CFR 60‐741.44(k) and 41 CFR 60‐300.44(k) require a contractor to compute and document annual totals for the number of job openings, applicants, jobs filled, and hires who self‐identified as individuals with disabilities, and the number of applicants and hires who self‐identified as protected veterans. In order to compute the annual totals for VEVRAA contractors must, on an ongoing basis, collect and keep records on the number of applicants who self‐identified as protected veterans; the total number of job openings and total number of jobs filled; the total number of applicants for all jobs; the number of protected veteran applicants hired; and the total number of applicants hired. Contractors must collect the same information for individuals with disabilities for their annual totals. Based on these requirements, it should be fairly easy for contractors to compute the employment activity totals for individuals with disabilities and for protected veterans during the first six months of the current AAP year and to submit that information in response to the Itemized Listing. If, however, a contractor has not computed, or is unable to compute, these totals for the first half of the current AAP year, the contractor must provide the records showing the number of jobs openings, applicants, jobs filled, and hires that would permit OFCCP to compute the totals.

OFCCP reminds contractors that the Scheduling Letter, which includes its Itemized Listing, creates a legal obligation to provide the information, in accordance with OFCCP’s authority to conduct compliance evaluations.

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Do contractors have to perform and submit a partial year analysis evaluating their utilization of individuals with disabilities in order to respond to item 10 in the Itemized Listing request seeking information that reflects their current year utilization progress?

The regulation at 41 CFR 60‐741.45 requires contractors to evaluate, annually, their utilization of individuals with disabilities in each job group or the entire workforce, as appropriate. In order to conduct this evaluation, contractors must collect and keep the relevant information on an ongoing basis. If a contractor has not performed, or is unable to perform, the utilization analysis using the information from the first six months of the current AAP year the contractor must provide OFCCP with the information so that OFCCP can perform the utilization analysis.

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What does OFCCP consider to be a contractor’s "current" AAP?

The scheduling letter used by OFCCP to initiate a compliance evaluation requires a contractor to submit its "current year" AAPs (Executive Order 11246, Section 503 of the Rehabilitation Act, and VEVRAA) and specific support data for the immediately preceding AAP year.  For example, if a contractor has an AAP that aligns with calendar years (January 1, 2018 through December 31, 2018) and receives the scheduling letter on May 15, 2018, the contractor would submit that AAP for January 1, 2018 through December 31, 2018 and the supporting data for the immediately preceding AAP year (January 1, 2017 through December 21, 2017) as requested in the Itemized Listing. 

If a scheduling letter is received within 30 days of the annual date of a contractor's AAP(s), the contractor may, at its own option, submit the updated AAP(s) for desk audit. 

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If the contractor is more than six months into its current AAP year when it receives a Scheduling Letter and Itemized Listing, how much additional updated data must it provide to OFCCP?

Several items on the Itemized Listing specify that if the contractor is six months or more into its current AAP year when the listing is received the contractor will provide OFCCP with updated data for the current AAP year. For each of these items, the contractor must provide OFCCP with at least the first six months of data from the current AAP year.

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Where can contractors find information about the support data they must submit on their compensation policies and practices?

Item 19 of the Itemized Listing attached to the Scheduling Letter outlines the support data contractors must submit on their compensation policies and practices. You can view the currently approved Scheduling Letter and Itemized Listing on www.reginfo.gov, by using the OMB control number 1250‐0003 to search "ICR."

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Item 19 refers to providing compensation data for the employees reported in the workforce analysis. My company’s AAP includes an organizational display rather than a workforce analysis. Do we have to start preparing a workforce analysis?

No. Simply provide the requested data for the employees in your organizational display.

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How should contractors measure compensation under the Scheduling Letter OMB reauthorized in 2014?

For all employees, compensation must include base salary and/or wage rate and hours worked in a typical workweek. Other compensation or adjustments to salary such as bonuses, incentives, commissions, merit increases, locality pay or overtime should be identified separately from base salary/wage for each employee.

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Does the Scheduling Letter still permit contractors to submit aggregate compensation data for employees?

No. Contractors are now required from the onset to submit “employee level” (i.e., individual) compensation data for all employees. If the contractor submits aggregate data, the compliance officer will consider the submission incomplete and require the correct individual data submission. (See below for information on the types of employees and timeframe covered by the data).

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Which employees must the contractor include in the data?

The employee‐level data must include, but is not limited to, full‐time, part‐time, contract, per diem or day labor, and temporary employees. Contractors must provide employee‐level compensation data for all of the employees included in the AAP workforce analysis/organizational display. The term "employee," as used in the AAP regulations in 41 CFR Part 60‐2, is broad enough to include part‐time, temporary and full‐time employees. Therefore, OFCCP already requires contractors to include part‐time and temporary employees in their AAPs. Item 19 seeks compensation data for "contract, per diem, or day laborers" as categories of temporary employees on the contractor’s payroll.

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What additional information must the contractor include with the individual‐level compensation data?

The contractor must provide, for each employee, gender, race/ethnicity, hire date, job title, EEO‐1 Category and AAP job group in a single file.

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Can a contractor submit data on additional factors that affect employee compensation?

Yes. A contractor may provide any additional data on factors used to determine employee compensation, such as education, past experience, duty location, performance ratings, department or function, salary level/band/range/grade. Providing this data is optional, but contractors are encouraged to provide this data since it may help explain their pay practices.

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What additional documentation on compensation should contractors submit?

Although not required, documentation and policies related to compensation practices of the contractor should also be included in the submission, particularly those that explain the factors and reasoning used to determine compensation. Submission of these documents is not required, but if OFCCP receives these documents early it will make the reviews more efficient.

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Must the contractor provide all requested compensation data electronically?

Per the Itemized Listing, a contractor must provide all requested data electronically, if it is maintained in an electronic format. In these instances, the contractor must submit the data in an electronic format that is complete, readable, and useable.

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Can contractors submit the requested compensation data with identifying numbers in lieu of providing employee names?

Yes, consistent with past agency practice, contractors may provide the initial individual compensation data submission using identifying numbers and without employee names — provided that the contractor includes the required gender, race/ethnicity, hire date, job title, EEO‐1 category, and AAP job group for the employees. However, the review may involve requests for additional information or an onsite visit to the facility at a later phase. In these circumstances, the compliance officer may need the employee names to conduct interviews or to match against other records such as personnel files.

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What is the time‐frame for the other compensation or adjustments to salary?

For each employee in the workforce analysis/organizational display, the contractor must identify separately other compensation or adjustments to salary (e.g., bonuses, incentives, commissions, merit increases, locality pay or overtime). The snapshot date is the date of the workforce analysis/organizational display. Therefore, for each employee in the workforce analysis/organizational display contractors should provide the actual amount paid in other compensation or adjustments to salary during the 12‐month period preceding the date of the analysis/display.

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The submission requires hire data on each employee record. Should the hire date reflect the original hire date, re‐hire date (in case of an employee that had left and was re‐hired), or a service date?

The contractor should provide information on the most recent hire date for each employee. However, if an employee’s status as a rehire is a factor that affects pay, Item 19 provides that the contractor may provide additional data on this factor (e.g., a contractor may also include the original hire date, and any information on how this impacts the employee’s pay).

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The new Itemized Listing requires support data to be provided in five specified race/ethnicity categories: African‐American/Black, Asian/Pacific Islander, Hispanic, American Indian/Alaskan Native, and White. May contractors submit their data using the seven race/ethnicity categories used to submit EEO‐1 reports to the EEOC?

Yes. As stated in Directive 2008‐02, OFCCP will accept AAPs and supporting records that reflect the five race and ethnicity categories outlined in 41 CFR Part 60‐2 or the seven used in the EEO‐1 Report. For purposes of the Item 19 requirement to provide compensation data by race/ethnicity, contractors may provide this data using either set of race/ethnicity categories.

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