The desk audit begins with receipt of the AAP(s). The appropriate field office should receive copies of a contractor’s current Executive Order 11246 AAP within 30 calendar days of the contractor’s receipt of the Scheduling Letter and Itemized Listing.25 The office should also receive separate or combined AAPs for Section 503 and VEVRAA within this same timeframe. If the field office does not receive the current AAPs or Itemized Listing information within this timeframe, the CO must call the contractor to determine the status.
25. The contractor has the option to prepare a combined Section 503 and VEVRAA AAP or to prepare separate Section 503 and VEVRAA AAPs.
1C00 Nonreceipt of AAPs
If the contractor fails to request an extension, if the request is denied, or if the contractor fails to submit any of the AAPs it is required to maintain within the established timeframe, the CO must recommend issuance of an SCN. The CO’s supervisor has the discretion only under extraordinary circumstances to grant the contractor a reasonable extension if the contractor does not submit the AAPs on time. This discretion should be exercised within the parameters set by the national office.26 Additionally, the regulations at 41 CFR 60-1.26(b)(1), 60-300.65, and 60-741.65 give the director of OFCCP the discretion to immediately refer the matter to the Solicitor for administrative enforcement when a contractor refuses to submit an AAP and efforts to conciliate the matter are unsuccessful.
26. See Directive 2018-08, “Transparency in OFCCP Compliance Activities.”
1C01 Nonreceipt of Itemized Listing Data
If, in response to the Scheduling Letter and Itemized Listing, a contractor does not meet its deadline to submit all the Itemized Listing records requested, including employment activity data, the CO must immediately begin the process to issue an SCN.27 This process also applies to contractors who receive the one-time, 30-day extension for submitting Itemized Listing information explained in 1B04. Examples of incomplete information include not submitting data for one or more personnel activity elements, such as applicant flow, hires, compensation, promotions or terminations. As with all correspondence, conversations, emails, or other communication, this contact must be meticulously recorded in the Case Chronology Log, in the event OFCCP goes to litigation.
27. Procedures for issuing an SCN are in Chapter 8 – Resolution of Noncompliance.
1C02 Regulatory Citations for Recordkeeping
If a contractor fails to submit data because it did not maintain appropriate records, one or more of the following regulatory sections may be applicable for COs to cite in the SCN or other closure document.
- Executive Order 11246 Recordkeeping and Related Requirements, 41 CFR 60-1.12 and 60-2.17(b) and 60-2.17(d). These two sections set forth requirements that necessitate recordkeeping of employment and personnel records.
- Section 60-1.12 sets forth the required document retention periods and identification requirements for all employment and personnel records and AAPs. Generally, a contractor must retain these records for two years unless it has less than 150 employees or does not have a federal contract of at least $150,000, in which case the period is one year.
- Section 60-2.17(b) requires that an AAP identify problem areas and Section 60-2.17(d) requires that an AAP include internal audit and reporting systems. COs may cite these requirements in conjunction with recordkeeping violations because they cannot be appropriately implemented without maintaining and analyzing basic data on employment activity as required by 41 CFR 60-3.4 and 60-3.15.
- General Data Requirements under the Uniform Guidelines on Employee Selection Procedures (UGESP), 41 CFR Part 60-3. These guidelines were designed to provide a framework for determining the proper use of tests and other selection procedures used as a basis for employment decisions. Section 60-3.4 requires contractors to maintain records that show the impact such selection procedures have on the employment opportunities of persons by identifiable race, sex, and ethnic groups. The race and ethnic groups are defined by 41 CFR 60-3.4B as Black, Hispanic, Asian, American Indian, and White other than Hispanic. However, OFCCP also permits contractors to keep their records concerning impact by using the race and ethnic categories on the Equal Employment Opportunity Standard Form 100, Employer Information Report EEO-1 series (EEO-1 report).
- Recordkeeping Requirements under UGESP for Contractors with 100 or More Employees. 41 CFR 60-3.15A(2) requires contractors with 100 or more employees to maintain and have available records or other information for each job showing whether the total selection process for that job has an adverse impact based on race, sex, or ethnic group as defined by 41 CFR 3.5B, described above. Contractors must have records on adverse impact determinations for each protected group that constitutes at least 2% of the labor force in the relevant labor area or 2% of the applicable workforce. Where the total selection process has an adverse impact, the CO may request validity evidence for each component of that process which has an adverse impact. Different types of validity evidence that may be maintained by contractors are explained in 41 CFR 60-3.15A(3).
- Recordkeeping Requirements under UGESP for Contractors with less than 100 Employees. 41 CFR 60-3.15 A(1) requires contractors with less than 100 employees to maintain and have available records for each job on all applicants, hires, promotions, terminations and any other selection decisions by sex and, where appropriate, by race and national origin. Contractors should maintain these records for any race or national origin group constituting more than 2% of the labor force in the relevant labor area. However, it is not necessary to maintain records by race and national origin if one race or national origin group in the relevant labor area constitutes more than 98% of the labor force in that area. If a CO has reason to believe a contractor’s selection procedure has an adverse impact, the CO may request evidence of validity for that procedure.
- Section 503 Recordkeeping Requirements, 41 CFR 60-741.80, 60-741.44(f)(4) and 60-741.44(k). Section 60-741.80 provides the general recordkeeping requirements for Section 503 while Sections 60-741.44 (f)(4) and (k) explain the retention requirements for the assessment of external outreach and recruitment efforts, and the data collection analysis, respectively.
- Section 60-741.80 sets forth the required document retention periods and identification requirements for all employment and personnel records, including, but not limited to, hires, requests for reasonable accommodation, terminations, the results of any physical examination, post-offer invitations to self-identify and any subsequent invitations to employees to self-identify. Generally, a contractor must retain these records for two years, unless it has fewer than 150 employees or does not have a federal contract of at least $150,000, in which case the period is one year.
- Sections 60-741.44(f)(4) and (k) require contractors to maintain certain records for three years. Such records include documentation of all activities contractors undertake to disseminate their affirmative action policies externally, and to conduct and assess outreach and positive recruitment. The three-year retention period also applies to documentation of the computations and comparisons performed by contractors to analyze applicant and hire data for individuals with disabilities.
- VEVRAA Recordkeeping Requirements, 41 CFR 60-300.80, 60-300.44(f)(4), 60-300.44(k), and 60-300.45(c). Section 60-300.80 provides the general recordkeeping requirements for VEVRAA while Sections 60-300.44(f)(4) and (k) explain requirements for external outreach and recruitment efforts, and the data collection analysis, respectively. Finally, Section 60-300.45(c) provides the requirement for documenting the annual VEVRAA hiring benchmark.
- Section 60-300.80 sets forth the required document retention periods and identification requirements for all employment and personnel records, including, but not limited to, hires, requests for reasonable accommodation, terminations, results of any physical examination, and post-offer invitations to self-identify. Generally, a contractor must retain these records for two years unless it has fewer than 150 employees or does not have a federal contract of at least $150,000, in which case the period is one year.
- Sections 60-300.44(f)(4) and (k) require contractors to maintain certain records for three years. Such records include documentation of all activities contractors undertake to disseminate their affirmative action policies externally and to conduct and assess outreach and positive recruitment. The three-year retention period also applies to documentation of the computations and comparisons performed by contractors to analyze applicant and hire data on protected veterans, including data gathered from invitations to self-identify for applicants and those applicants who have been hired.
- Section 60-300.45(c) requires contractors to document the hiring benchmark that they establish each year, along with the factors they considered and their relative significance, and to retain the documentation for three years. In reviewing this documentation, the CO must determine whether the contractor used the five-factor method for establishing the VEVRAA hiring benchmark or if the contractor set its benchmark to equal the national percentage of veterans in the civilian labor force. If the contractor used the five-factor method, the CO must examine the relative significance of each factor considered by the contractor in setting its benchmark.
1C03 Evaluation Period
COs must evaluate the contractor’s AAPs and Itemized Listing data for at least the last full AAP year. COs must also examine the current year data if the contractor is six months or more into its current AAP year. For current year data of six months or more, the CO must examine the underlying records if the contractor cannot or has not yet computed the data. For example, if the contractor establishes its AAPs on a calendar year basis (January – December) and the compliance evaluation is scheduled in August, a CO would evaluate the contractor’s data from January through December of the prior year. In addition, the CO would examine the data or underlying records at least from January through June of the current year.
1C04 Additional Data Requests
A CO should not request any supplemental data during the desk audit after the contractor has responded to the Scheduling Letter and Itemized Listing unless:
- The contractor’s submission is incomplete; or
- The CO needs to clarify information provided by the contractor for the desk audit.
If the contractor does not make a complete submission in response to the Scheduling Letter and Itemized Listing,28 then the CO must follow the procedures in 1C00 or 1C01, as appropriate.
The CO may find an indicator of discrimination at desk audit and need to request additional data to perform refined analysis before going on-site. This supplemental records request must include the basis for the request, be reasonably tailored to the areas of concern, and allow for a reasonable time to respond.
Special circumstances or exceptions may also exist that warrant a CO extending the analysis of a contractor’s AAPs, personnel activity, policy implementation and supporting documentation to cover a period beginning two years before the date the contractor received the Scheduling Letter. The appearance of potential discrimination and missing records are examples of such special circumstances or exceptions. To fully investigate and understand the scope of potential violations, the CO may also need to examine records created after the date of the Scheduling Letter to determine, for example, if indicators of these potential violations appear or whether the situation or factors resulting in the indicators have been remedied. This assumes, however, that the CO, in conjunction with DPO, can establish coverage for the entire period. If the CO believes it is necessary to request information related to periods after the date of the Scheduling Letter, the CO must discuss the issue with his or her supervisors. The CO will request data relevant to the potential discrimination issues identified at the desk audit to determine how far into the evaluation period the violation extends and whether the violation continues to the present day. This information is necessary to ensure that any discriminatory practices have ended and to ensure that all victims of discrimination receive appropriate remedies.
28. FCCM 1E discusses what must be included in the contractor’s submission. FCCM 1F, 1G and 1H explain how to evaluate whether the content submitted is acceptable.