Implementation of the Affirmative Action Plan

The task of getting written Affirmative Action Plans (AAP) done every year is daunting for many companies. Gathering the data and programmatic information, conducting the analyses, and putting it all together in some meaningful format takes a lot of focus, effort, knowledge, and time. And when it is all done, many people feel a great sense of relief, and think that they are finished with the affirmative action plan (AAP) until next year.

But, wait! Not so fast! Getting the Plan done is important, but it is just the beginning. There’s more, lots more to be done to have a compliant affirmative action program. Let’s dig in:

OFCCP

The Office of Federal Contract Compliance Programs (OFCCP) in the US Department of Labor enforces the laws and regulations for affirmative action programs for covered Government contractors – companies that have contracts to provide goods or services to agencies of the Executive Branch of the federal government. Under these laws and regulations, contractors are required to develop and maintain written affirmative action programs for each of its establishments, and update them annually.

During routine random audits of a contractor’s affirmative action program, OFCCP’s focus is on the quantitative analyses contained in the AAP. More generally, what they are looking for in the audit is evidence of (1) the company’s commitment to equal employment opportunity (nondiscrimination) in all employment processes, and (2) ‘affirmative actions’ – practical efforts to “cast the wider net” to make the employment programs and processes “diverse and inclusive.”

AAP Requirements

Action-oriented Programs

In developing the AAPs (Minorities and Women, Individuals with Disabilities, and Protected Veterans), contractors must develop and execute programs designed to correct problems identified in the AAP analyses, and assist the company in attaining “goals” that were established as a result of the analyses. This section of the Plan should identify the specific actions the company will take to ensure that women, minorities, individuals with disabilities, and protected veterans are included in the company’s employment processes, and treated in a nondiscriminatory manner therein.

In this context, programs for identifying, attracting, hiring, and advancing protected group members would be evidence of the company’s implementation of its EEO/AA policy and program. This could include everything from internal and external job posting, special or targeted recruiting, establishing and maintaining relationships with organizations representing protected group members, company-sponsored training and development programs, and pay equity programs.

Internal Audit and Reporting

Contractors are required to put in place a system to measure the effectiveness of the affirmative action program. “What are you doing, and how is it working?”

Implementing an audit and reporting system could include:

• Monitoring all employment activity on a regular basis (not just at the end of the year) to determine if EEO and AAP goals and objectives are being achieved.
• Report to management on AA program activity and effectiveness. (What will be reported? To whom? When/how often?)

Beyond the AAP

This list is not all inclusive, but is representative of program areas that OFCCP commonly investigates during Compliance Evaluations:

EO Clause

Contractors must include the Equal Opportunity clause in every subcontract or purchase order so that the subcontractor or vendor may become aware of its compliance obligations. It is a common practice during a compliance evaluation to be asked for a copy of a current subcontract or purchase order to verify that it contains the current EO Clause or language incorporating it by reference.

EO Tagline

Contractors must include in their advertisements for employment a nondiscrimination statement:

“All qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, protected veteran status, or on the basis of disability.”

Note: Other versions of a nondiscrimination statement may also be used.

Invitation to Self-Identify

Self-Identification is the preferred method for obtaining demographic information for applicants and employees. The process is voluntary, and the information is needed for the EEO-1 report, and the AAP. Contractors are required to provide an opportunity for people to self-identify their race/ethnicity, gender, disability, and protected veteran status, during the employment application stage, and post offer/pre-employment stage of the recruitment and selection process.

Notices posted

Pursuant to the provisions of the EO Clause, contractors are required to post notices the Director of OFCCP prescribes. These notices are to be posted in conspicuous places, available to both applicants and employees, in your usual format (electronic and/or paper).

The “Pay Transparency Nondiscrimination Provision,” and “EEO Is the Law” Poster and Poster Supplement are currently required to be posted.

Required Federal Filings

EEO-1 Report

Covered federal Government contractors with 50 or more employees must file the EEO-1 report annually. The data for the report is a workforce snapshot between October 1 and December 31. The filing date is March 31 of the following year.

VETS-4212 Report

Federal contractors with a contract of $150,000 or more must file the VETS-4212 report annually. The data for the report is a workforce snapshot between July 1 and August 31, and data on hires and terminations during the 12-month period prior to the workforce snapshot. The filing date is September 30.

Mandatory Job Listing

Contractors must “list” all employment openings that are being filled from outside the company, and are of 3 days or longer duration, with the appropriate employment service delivery system (i.e., state/local workforce agency or employment service) where the job opening occurs.

Availability of the Affirmative Action Program

(Disability and Protected Veterans) – The full affirmative action program, absent the required “data metrics” (statistical analyses), shall be available to any employee or applicant for employment for inspection upon request. The location and hours during which the program may be obtained shall be posted at each establishment.

Reasonable Accommodation

Accessibility of Online Employment Application Process

Contractors must provide a reasonable accommodation for their online employment application process, and post a notice on their website regarding an alternative application method.

Reasonable Accommodation Procedures

Contractors should develop and disseminate written procedures for processing requests for reasonable accommodations from applicants and employees.

Recordkeeping

OFCCP’s recordkeeping regulations require contractors to keep (and have available for review by OFCCP) any & all records created, produced or received during the employment recruitment and selection process, including Applicant records, and forms used to invite applicants and employees to voluntarily Self-Identify for race/ethnicity, sex, disability, and protected veterans status. All records are to be maintained for a period of not less than two years. Under the Section 503 and VEVRAA regulations, certain records are required to be maintained for a period of not less than three years.

Conclusion

An affirmative action program is much more than just the AAP document. It might be helpful to review your current program to see to what extent it contains any or all of these elements.

What you should not do is develop a written Affirmative Action Plan, let it sit on the shelf and collect dust for a year until the next update, and do nothing about the Plan in the interim.

What contractors must do is develop and implement programs to institutionalize equal employment and affirmative action policies in the fabric of their management and employment practices to have a successful, as well as a compliant, affirmative action program.