The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has reauthorized its Construction Compliance Review Scheduling Letter and Itemized Listing, now referred to as the Amended Letter, with several significant updates.

This Amended Letter informs federal construction contractors of their selection for a compliance review and outlines the required information for the audit. It will be applicable to construction reviews scheduled on or after October 1, 2024, prompting federal construction contractors to familiarize themselves with these revisions to prepare adequately.

The OFCCP conducts compliance reviews to ensure federal construction contractors meet their affirmative action obligations under Executive Order 11246 (E.O. 11246) for contracts of $10,000 or more, Section 503 of the Rehabilitation Act of 1973 for contracts of $15,000 or more, and the Vietnam Era Veterans Readjustment Assistance Act of 1974 for contracts of $150,000 or more.

One key change in the Amended Letter is that it can now be emailed, with a read receipt requested, rather than being mailed exclusively via certified mail. Contractors are also now required to submit their information electronically via email directly to the investigator, reflecting the OFCCP’s aim to transition to a paperless operation.

The Amended Letter emphasizes that the OFCCP will treat records as confidential to the fullest extent permitted under the Freedom of Information Act and relevant laws. Additionally, it states that the OFCCP may initiate enforcement actions if the requested information is not provided within 30 days of receipt.

The updated “Itemized Listing” includes more detailed requirements under E.O. 11246, imposing new obligations on construction contractors such as:

• Providing detailed project information, including location, state, end date, and type (commercial or residential).
• Submitting comprehensive payroll details for each employee, including overtime rates, hours worked, and bonus data.
• Including payroll information for employees involved in supervisory and inspection roles beyond just construction trade workers.
• Providing not only their EEO Policy but also anti-harassment policies, employment agreement policies, and arbitration policies.
• Demonstrating inclusion of “Standard Federal Equal Employment Opportunity Construction Contract Specifications” and the “Notice of Requirement for Affirmative Action to Ensure Equal Employment Opportunity” in subcontracts over $10,000.
• Indicating whether they have a unionized workforce.
• Documenting the review of their EEO policy with necessary personnel and monitoring of employment practices to ensure non-discrimination.
• Identifying employment tests and selection procedures, particularly those using artificial intelligence.
• Showing evidence of monitoring employment activities for any discriminatory effects.

Changes were also made to the Itemized Listing for Section 503 and VEVRAA, now including a disclaimer stating,

“Note: If your company’s sole contract coverage comes from federally assisted construction contracts, you are not required to submit the information requested in the . . . Itemized Listing.”

These sections now require contractors to provide not just their outreach efforts but also the criteria used to assess their effectiveness and detailed descriptions of various recruitment initiatives implemented.

Federal contractors receiving a scheduling letter must respond promptly to avoid enforcement actions by the OFCCP. Given the detailed nature of the information requested and the relatively short response time, construction contractors should ensure they maintain adequate records for compliance audits under E.O. 11246, Section 503, or VEVRAA. Contractors uncertain about the necessary records should seek guidance from experienced counsel, as developing a compliant affirmative action plan involves more than just paperwork.