by The federal government published new FAQs on June 3, 2024, to help federal contractors provide information needed for compliance reviews. The updated guidance contains a clear message that answering ‘not applicable’ to a requirement to submit documentation regarding employee selection processes is not an acceptable response just because the item is also asking for information on the use of artificial intelligence (AI) in selection processes. The FAQs can be found at: https://www.dol.gov/agencies/ofccp/faqs/scheduling-letters
During the upcoming weeks, the Office of Federal Contract Compliance Programs (OFCCP) will continue the process of sending out individualized audit notices to the federal contractors whose compliance regarding equal employment opportunity obligations is being reviewed by the agency. See the June 7, 2024 post, The Latest OFCCP Audit List is Out, for a link to the list of targeted contractors. The individualized audit notice sent to contractors, officially titled the Supply and Service Scheduling Letter and Itemized Listing, contains 26 items that employers must respond to at the beginning of the compliance audit. This notice is often referred to as the ’30-day letter’ since that is the length of time the contractor is given to provide the items.
The itemized list of required responses was updated in the past twelve months from the list used for several years. The updated items include expansion of Item 21 regarding employee selection procedures. Among other things, Item 21 references the use of AI in screening and selecting employees. The updated FAQs expand guidance for Item 21 to clarify that it requires the contractor to provide information and documentation of policies and practices used to recruit, screen, and hire employees, including but not limited to the use of artificial intelligence and other technology-based selection procedures. Answering ‘not applicable’ is therefore an unacceptable response to the item. The updated FAQs (marked as ‘new’ on the webpage linked above) explain that the question goes beyond merely addressing the use or nonuse of technology-based or AI tools. The requirement is to provide documentation of the full scope of a contractor’s employee and promotion selection process, whether or not AI or other technology is used.
