In the year since the Labor Department’s Office of Federal Contract Compliance Programs (OFCCP) began using a more burdensome Scheduling Letter and Itemized Listing to notify federal contractors of an upcoming compliance evaluation, Item 21 on the Itemized Listing has generated confusion. Item 21 asks the contractor to identify and document “policies, practices, or systems used to recruit, screen, and hire, including the use of artificial intelligence, algorithms, automated systems or other technology-based selection procedures.” In the absence of OFCCP guidance, we advised our members that did not have existing policies or documentation to offer a good faith response by drafting a brief, high level summary of their recruitment and selection processes instead of simply responding “not applicable.”
OFCCP has since published five new frequently asked questions that confirm that a “not applicable” response is insufficient.
Our analysis of the FAQs reaffirms our initial guidance on Item 21. If a contractor does not maintain hiring policies, it can submit a short summary of its recruitment and hiring process. So far, this approach seems to preclude any lengthy follow-up from OFCCP.
Members of the Center for Workplace Compliance (CWC), our affiliated nonprofit membership association, can read more here.