Office of Federal Contract Compliance Programs (OFCCP)

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Policy/Regulatory Issues

• My company has been advised that OFCCP no longer uses the Letter of Commitment and that the only document for resolving a violation is a Conciliation Agreement no matter how minor the violation. Is this true?
• The scheduling letter used by OFCCP to commence a compliance evaluation requires the submission of an Executive Order Affirmative Action Program (AAP); Section 503/38 U.S.C. 4212 AAP(s); and support data on personnel activity from the preceding AAP year (a contractor that is 6 months or more into the AAP year must submit information that reflects progress on goals established in the current AAP). What does OFCCP consider to be a "current" Affirmative Action Program and support data?
• What is the impact of the Supreme Court's decision in Ledbetter v. Goodyear Tire & Rubber Co. on OFCCP compensation evaluation and enforcement practices?

My company has been advised that OFCCP no longer uses the Letter of Commitment and that the only document for resolving a violation is a Conciliation Agreement no matter how minor the violation. Is this true?

The use of a Letter of Commitment (LOC) was discontinued by Administrative Notice #226 on August 5, 1998; this document was used to resolve minor, technical violations which are generally correctable on-site. OFCCP now documents minor violations in its Compliance Evaluation Closure Letter. The Conciliation Agreement continues to be used to document and resolve major, substantive violations. You may access the administrative notice through our Web site.

The scheduling letter used by OFCCP to commence a compliance evaluation requires the submission of an Executive Order Affirmative Action Program (AAP); Section 503/38 U.S.C. 4212 AAP(s); and support data on personnel activity from the preceding AAP year (a contractor that is 6 months or more into the AAP year must submit information that reflects progress on goals established in the current AAP). What does OFCCP consider to be a "current" Affirmative Action Program and support data?

Contractors are obligated to update their AAPs on an annual basis. When a scheduling letter is received, there is an expectation that a contractor will submit "current" AAPs. When a scheduling letter has been received just prior to, or just after, the annual update, questions have arisen concerning which AAPs should be submitted as the "current" AAP(s). Contractors should submit to the agency the AAP(s) that are current as of the date the scheduling letter is received. The date of receipt will be considered to be the date that the Certified Mail Return Receipt is signed by a representative of the contractor. If the scheduling letter is received within 30 days of the annual update of a contractor's AAP(s), the contractor may, at its own option, submit the updated AAP(s) for desk audit. In the event the contractor decides to submit the AAP(s) that have not yet been updated, then support data for the eleven (11) month period preceding the updating of those AAP(s) must be provided, in addition to information on the preceding AAP year.

What is the impact of the Supreme Court's decision in Ledbetter v. Goodyear Tire & Rubber Co. on OFCCP compensation evaluation and enforcement practices?

In Ledbetter v. Goodyear Tire & Rubber Co., 127 S.Ct. 2162 (2007), the Supreme Court held that an allegation of pay discrimination under Title VII by a single employee is a discrete employment action that must be challenged within 180 (or 300) days of the allegedly discriminatory pay decision. OFCCP does not believe that Ledbetter invalidates its Interpretative Standards for Systemic Compensation Discrimination under E.O. 11246 ("Standards"). The agency will continue to use statistical analysis, including multiple regression techniques, to discover class-wide salary disparities of a systemic nature. As it has in the past, the agency will gather all relevant data regarding the factors that actually influenced the contractor's compensation systems or pay decisions as a whole and will continue to supplement any statistical analyses with anecdotal evidence of discrimination, as discussed in the Standards.

While OFCCP is still examining the impact of Ledbetter in specific cases, nothing in the decision permits a contractor to refuse to provide requested compensation data. To the extent a contractor wishes to present data regarding specific pay decisions, the data will be accepted and evaluated in conjunction with the data items requested by OFCCP.