On September 28, 2011 the Office of Federal Contract Compliance Programs (OFCCP) submitted to the Office of Management and Budget (OMB) its “revised” scheduling letter and itemized listing with minor changes to the original submission in May. Contractors will once again have 30 days to submit comments before OMB gives final approval. Until final approval is given, the OFCCP is using the current scheduling letter.

As important as the proposed Itemized Listing is, it is the supporting statement they submitted that provides the rationale for their revisions or lack thereof. To get a sense of the mindset of the OFCCP here is a quote:

“OFCCP seriously considered the comments we received and the calculation of burden that our proposed changes would create for contractors. After doing so, we determined that the benefits associated with received improved data from contractors and the net reduction of 1.34 hours in the total burden hours spent by contractors in supplying the OFCCP with that data are the best most innovated and least burdensome tasks for achieving regulatory ends.

Moreover, our assessment finds societal benefits result from finalizing the proposed changes to the Scheduling Letter and Itemized Listing Among them are the:

• Inclusion of more qualified workers in the nation’s workforce,
  
  
• Ability to provide America’s returning veterans and wounded warriors meaningful employment opportunities as they transition from the military,
  
  
• Opportunity to develop a workforce that reflects the diversity of the nation, and
  
  
• Strengthening of our ability to compete effectively in a global economy based on the diversity and skill of America’s workforce.”

Now that you understand that regardless your concerns regarding burden the OFCCP is going to move forward as originally planned, let’s discuss what is in store for contractors at the desk audit stage upon final approval.

Employment Leave Policies
First, is the request of your employment leave policies including, but not limited to FMLA, pregnancy leave, sick leave, medical leave, personal leave, religious and holiday observances and any other leaves of absence. OFCCP is not requiring contractors to create policies where they do not exist but to submit existing policies. Contractors are also given the option to submit the entire employee handbook or manual.

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OFCCP should be commended for its efforts at creating equal opportunity workplaces. Undoubtedly, there are real cases of compensation discrimination and OFCCP can - and should - play a role in ending discrimination. On its face, the compensation data collection tool appears to be one way to do this. But a closer reading of the Advanced Notice leads me to believe OFCCP has been visited by Cognitive Dissonance Man - they're trying to do the right thing, but for the wrong reasons:

Women still earn only 77 cents for each dollar earned by a man... Potentially non-discriminatory factors can explain some of these differences. Even so, after controlling for differences in skills and job characteristics, women still earn less than men. Some scholars find that these differences can be explained, to some extent, by differences in education and prior labor market experience. Others identify job segregation as an important cause of the pay gap. Ultimately, the research literature still finds that an unexplained gap exists even after accounting for potential explanations. Moreover, research literature finds that the narrowing of the pay gap has slowed since the 1980s. To the extent that these factors, such as type of job or amount of continuous labor market experience, are also influenced by discrimination, the "unexplained" difference may understate the true effect of discrimination.

Even though OFCCP acknowledges the vast body of research that indicates occupation, industry, labor market experience, and other factors that explain a large portion of the gender pay gap, the Advanced Notice seems to dismiss the research. The Advanced Notice also suggests that some of these explanatory factors themselves, such as continuous labor market experience and occupational choice, are influenced by discrimination.

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