1F05 Review of Executive Order Itemized Listing Data for Acceptability

Contractors must submit data and information on the results of their immediately preceding AAP, as well as submit data and information on their current year AAP if they are six months or more into the current year by the time they receive their Scheduling Letter. (See 41 CFR 60-1.12(b)).

Investigators request the AAP data and information using the Itemized Listing that accompanies the Scheduling Letter. 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 should provide OFCCP with as much current AAP year data as it has. This means, for example, that if the contractor is six months into its current AAP year, it should provide six months of additional data; if the contractor is seven months into its current AAP, it should provide seven months of data; and if the contractor is 10 months into its current AAP, it should provide 10 months of data.

The Itemized Listing requests data and information indicating the numerical and other results of contractors’ affirmative action goals for each job group for the current and preceding AAP years, as well as employment activity data (i.e., applicants, hires, promotions and terminations) and employee-level compensation data. It also requests copies of the contractor’s EEO-1 reports for the last three years and a copy of the contractor’s collective bargaining agreement, if applicable, including documents that implement, explain or otherwise elaborate on the provisions of the collective bargaining agreement.

a. Data on Affirmative Action Goals. As noted above, the contractor must provide information indicating the numerical results of affirmative action goals set for each job group in their immediately preceding AAP and, where applicable, results on goals set for their current AAP. For each goal not attained, or not currently being attained, contractors must describe the good faith efforts they have undertaken to achieve the goal. Provided they make good faith efforts, contractors will not be held in violation for failure to achieve the goal. Contractors should always submit goal data for the immediately preceding AAP unless they were not federal contractors covered by 41 CFR Part 60-2 during the preceding AAP year.

  • Information on Job Groups with Goals. Investigators, in order to measure the results of goals, must first know whether a contractor established goals for its job groups and what the goals are. The contractor’s current AAP submitted for desk audit will have this information for the current year. To be an acceptable submission, contractors must submit information on their goals for the immediately preceding AAP year including:

    a. job group representation at the start of the AAP year (i.e., total incumbents, total minority incumbents, and total female incumbents);

    b. the placement goals established for minorities and women at the start of the AAP year; and

    c. the actual number of placements (hires plus promotions) made during the AAP year into each job group with goals (i.e., total placements, total minority placements, and total female placements). For all placement goals not attained, describe the specific good faith efforts made to remove identified barriers, expand equal employment opportunity, and produce measurable results.

  • Information on Placements into Job Groups with Goals. Since contractors establish annual goals in terms of a percentage placement rate, evaluation of progress toward the goals requires knowledge of the total number of placements into the job groups (hires, promotions and transfers) and the number of minority and female placements, as appropriate. If a contractor’s progress report does not include this information or if it includes incomplete information (e.g., the number of minorities and females but not total placements), the Investigator will determine if the missing information can be obtained from the contractor’s submission of personnel activity data. Following the procedures in FCCM 1F04(d) – Additional Required Elements of AAPs: Internal Audit and Reporting System, if the information cannot be obtained from the personnel activity data, the Investigator must ask the contractor to forward a copy of the report on the progress made toward its goals as prepared under its internal audit and reporting system. Following the procedures in FCCM 1F05 – Review of Executive Order Itemized Listing Data for Acceptability, if the contractor employs 100 or more people, a copy of the underlying data it used for its adverse impact determinations on hires, promotions and any other placements into job titles within the job group should be requested.
  • Good Faith Efforts. When a contractor’s goals report does not describe its good faith efforts to achieve the goals that it failed to meet, or does not describe those efforts in sufficient detail for an Investigator to evaluate their adequacy, the Investigator must request additional information to review during the desk audit and record the findings in CMS. The Investigator must also include this request for more information in the On-Site Plan for evaluation of good faith efforts. Even if the contractor corrects the goals report, the closure letter (L-5 – Notice of Closing: Compliance Evaluation (No Violations Found) may identify the incorrect or incomplete report as a technical violation that was corrected during the review.

b. Review of Employment Activity Data for Acceptability

  • Data Format. To be acceptable for the desk audit, the contractor must present Itemized Listing data either by job group or by job title. For example, data by total workforce is not acceptable; nor is data by EEO-1 job category, unless a category legitimately constitutes a job group at the particular establishment or the contractor has fewer than 150 employees.
  • Information Included. For each job group or job title, Itemized Listing data in each major personnel activity area (e.g., applicant flow, hires, promotions and terminations) must at least include the total number of actions, the total number of actions for women and the total number of actions for each race/ethnicity. For example, applicant flow for a job group or job title must include at least the total applicants, total female applicants and total applicants for each race/ethnicity; hires for a job group or job title must include at least the total hires, total female hires and total hires for each race/ethnicity. For each job title or job group, contractors must also provide the total number of employees, by gender and race/ethnicity, as of the start of the immediately preceding AAP year.
  • Evaluation Period Covered. It is generally better to have the longest possible period because the data are more likely to reflect the contractor’s usual way of operating. At a minimum, however, several items of Itemized Listing data must cover the immediately preceding AAP year and, if the contractor is six months or more into its current AAP year when it receives the Scheduling Letter, the current AAP year. If there are indicators of a violation, the evaluation period may extend to cover the two years before the contractor’s receipt of the Scheduling Letter, as long as the contractor was covered by 41 CFR Part 60-2 during that period. To fully investigate and understand the scope of potential violations, the Investigator may need to examine information relating to periods after the date of the Scheduling Letter to determine, for example, if violations are continuing or have been remedied. If the Investigator believes it is necessary to request information for periods after the date of the Scheduling Letter, the Investigator must discuss the issue with their supervisor.
  • Applicant Data. Investigators should thoroughly review the contractor's activity data and note areas with unusual activity or where they need clarifying information. For example:
    • one-to-one applicant to hire ratios,
    • low applicant to hire ratios, and
    • a small number of applicants for entry level jobs.

Investigators should review the contractor’s activity data for such instances whether or not the contractor has had a prior history of applicant tracking or recordkeeping violations. Investigators may be able to address these issues during the desk audit; however, any requests outside of the scope of the Scheduling Letter should take place after the desk audit.

c. Review of Employee-Level Compensation Data. The Itemized Listing requests data regarding the contractor’s compensation, including employee-level compensation information and policies related to compensation practices.

  • Data Format. The contractor should electronically submit all of the compensation data requested, if the data is computerized. Each snapshot date must be contained within a single file.
  • Information Included. The Investigator must review the data to ensure it includes compensation, gender, and race/ethnicity information, and hire date for each employee, as well as job title, EEO-1 category and job group. Compensation includes 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 for each employee. To be acceptable, data should be present for all employees, including full-time, part-time, contract, per diem or day labor, and temporary employees, as of (1) the date of the organizational display or workforce analysis and (2) the date of the prior year’s organizational display or workforce analysis.

Additional data that must be included are data on factors used to determine employee compensation such as education, experience, duty location, performance ratings, department or function, and salary level/band/range/grade. Documentation and policies related to compensation practices of the contractor must also be included in the submission to be acceptable, particularly those that explain the factors and reasoning used to determine compensation.

  • Time Period of Data. Contractors must provide two years or “snapshot dates” of compensation data. Contractors should not remove or exclude any employees because they are not included in both snapshot dates. The compensation data submissions should reflect all employees 1) as of the current organizational display or workforce analysis and 2) as of the prior year organizational display or workforce analysis. OFCCP anticipates the employees included in the two snapshots will not necessarily match due to changes in the workforce. For example, on January 1, 2023, the workforce analysis showed there were 100 employees. Throughout 2023, there were changes to the workforce due to an increase in hiring. On January 1, 2024, the workforce analysis showed there were 120 employees. The contractor must submit the compensation data for the 100 employees as of January 1, 2023 and compensation data for the 120 employees as of January 1, 2024. In addition, the race/ethnicity and gender counts in each year’s workforce analysis or organization display should reflect the race/ethnicity and gender counts in the compensation data.

  • Compensation Analysis. For a submission to be acceptable, contractors must provide documentation they are conducting a compensation analysis. For example, a contractor can submit their full internal compensation analysis as documentation of meeting their obligations. At a minimum, OFCCP requires that contractors provide documentation that demonstrates at least the following:

    • when the compensation analysis was completed;
    • the number of employees the compensation analysis included and the number and categories of employees the compensation analysis excluded;
    • which forms of compensation were analyzed and, where applicable, how the different forms of compensation were separated or combined for analysis (e.g., base pay alone, base pay combined with bonuses, etc.);
    • that compensation was analyzed by gender, race, and ethnicity; and
    • the method of analysis employed by the contractor (e.g., multiple regression analysis, decomposition regression analysis, meta-analytic tests of z-scores, compa-ratio regression analysis, rank-sums tests, career-stall analysis, average pay ratio, cohort analysis, etc.).

    Additional information on contractor’s obligations can be found in 41 CFR 60-2.17(b)(3) and Directive 2022-01: Advancing Pay Equity Through Compensation Analysis (Revision 1).

d. Documentation of policies, practices, or systems used to recruit, screen, and hire, including the use of artificial intelligence. For a submission to be acceptable, contractors must identify and provide information and documentation of policies, practices, or systems used to recruit, screen, and hire, including, but not limited to, the use of artificial intelligence (AI), algorithms, automated systems or other technology-based selection procedures. Contractors must respond to the Scheduling Letter whether or not they use artificial intelligence, algorithms, automated systems or other technology-based selection procedures. The contractor’s response must also include the same information and documentation related to all third-party recruiting, screening, and/or hiring products and services.

Documentation related to AI, algorithms, and automated systems could include, but is not limited to, the names of software used, names of vendors used to supply these systems, a written description of how the technology is used, who has access and utilizes the technology, and the impact it has on the selection process or stages of the process.

Where the contractor has written policies, copies of these policies should be submitted. Where the contractor does not have written policies, written descriptions of these polices should be submitted. The Investigator will request additional information when a contractor provides an insufficient response to the Scheduling Letter. This may include interviews and/or an on-site investigation.

e. Action When Data Are Unacceptable. If employment activity or compensation data are submitted but not acceptable, Investigators must call the contractor and request that the appropriate changes are promptly made and the data resubmitted within the timeframe specified by the OFCCP field office. If, at the end of the allotted timeframe, the data are not received in an acceptable form, Investigators will recommend issuing a SCN specifying the regulatory sections the contractor violated.

Examples of unacceptable data submissions include, but are not limited to, instances where the data are in aggregations larger than job group or are not provided by sex, or by racial or ethnic category.