1C Receipt of AAPs and Itemized Listing Data for Desk Audit

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 Investigator must recommend issuance of a SCN. The Investigator’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 in Directive 2022-02 – Effective Compliance Evaluations and Enforcement and other guidance. 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.

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 Investigator must immediately recommend issuing a SCN. Investigators can find the procedures for issuing a SCN in Chapter 8 – Resolution on Noncompliance. 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 correspondence, in the event OFCCP goes to litigation.

If a contractor submits its AAP(s), but does not submit the Itemized Listing, the Investigator should determine if the AAP(s) are acceptable and begin the process to issue a SCN regarding the missing Itemized Listing submission and any unacceptable elements of the AAP(s). If the contractor submits its AAP(s) and partial Itemized Listing data, the Investigator should determine if the AAP(s) and partial Itemized Listing submissions are acceptable and analyze the acceptable Itemized Listing data submitted. The Investigator and supervisor should determine if a SCN is necessary to receive the missing Itemized Listing data.

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 Investigators 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. Investigators 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).
    1. 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 Investigator 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).
    2. 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 an Investigator has reason to believe a contractor’s selection procedure has an adverse impact, the Investigator 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 Investigator 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 Investigator must examine the relative significance of each factor considered by the contractor in setting its benchmark.

Investigators must evaluate the contractor’s AAPs and Itemized Listing data for at least the last full AAP year. However, Investigators must carefully examine the Scheduling Letter and Itemized Listing as the evaluation period may be different per item. For example, Investigators must also examine the current year data for employment activity if the contractor is six months or more into its current AAP year. If the contractor cannot or has not yet computed the data for the current AAP year and it has been six months or more, the Investigator must examine the underlying records. Thus, if the contractor establishes its AAPs on a calendar year basis (January – December) and the compliance evaluation is scheduled in August, an Investigator would evaluate the contractor’s data from January through December of the prior year. In addition, the Investigator would examine the data or underlying records at least from January through June of the current year.

OFCCP may seek additional data before the completion of the desk audit if:

• The contractor’s submission is incomplete;
• The Investigator needs to clarify information provided by the contractor for the desk audit; or
• The data is in a format that cannot be analyzed.

If the contractor does not make a complete submission in response to the Scheduling Letter and Itemized Listing, then the Investigator must follow the procedures in 1C00 or 1C01, as appropriate. Section 1E discusses what must be included in the contractor’s submission. Sections 1F, 1G and 1H explain how to evaluate whether the content submitted is acceptable.

The Investigator 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 an Investigator 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 Investigator 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 Investigator, in conjunction with DPO, can establish coverage for the entire period. If the Investigator believes it is necessary to request information related to periods after the date of the Scheduling Letter, the Investigator must discuss the issue with their supervisors. The Investigator 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.