Each month we are inundated with members inquiring on whether or not they are required to follow an Affirmative Action Plan (AAP). As we quickly approach the New Year and begin hiring for upcoming projects it is important to be mindful of AAP requirements and determine if you must develop your own Affirmative Action plan.
All federal contractors and subcontractors, who meet the minimum thresholds are required to develop and maintain an annual Affirmative Action Plan as mandated by the Office of Federal Contract Compliance Programs (OFCCP) for each establishment. An AAP should be customized to reflect an employer’s organizational structure, policies, practices, programs, and data. Although AAP’s are generally a condition of doing business with the federal government, there are situations in which an AAP could be required by a court as a solution for discrimination or possible voluntary/involuntary patterns of discrimination. A federally mandated AAP will conform to the Code of Federal Regulations outlined in 41 CFR 60-2 and must be developed within 120 days of the contract initiation, plus updated annually. It is important to note that you will not be required to submit your Affirmative Action Plan to the OFCCP, however you must retain proper documentation for proof of compliance. If the DOL audit your company the OFCCP is allowed access to all records. A sample Affirmative Action Plan provided by the DOL can be found here.
The following three separate laws mandate federal contractors and subcontracts to maintain AAP’s; Executive Order 11246, Vietnams Era Veteran’s Readjustment Assistance Act and Section 503 of the Rehabilitation Act.
Executive Order 11246
Executive Order 11246 mandates that federal contractors and subcontractors are prohibited from discriminating in employment decisions on the basis of sex, race, color, national origin, religion and requires affirmative action for women and minorities.
To determine if your organization is covered under Executive Order 11246, consider the following:
- Employers with at least 50 employees and $50,000 in federal government contracts or subcontracts
- Organizations expecting to be awarded government contracts of $50,000 or more
- Your company is a depository for government funds or a paying agent for U.S. savings bonds (Banks/Credit Unions)
VEVRAA
Originally passed in 1974, The Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA), as amended by the Jobs for Veterans Act, aims at protecting Vietnam veterans from employment discrimination. VEVRRA requires contractors to take affirmative action to employ veterans including veterans with disabilities acquired during services, veterans who have been recently separated and other protected veteran categories. Since its update in September 2013 VEVRAA has added further compliance requirements to its regulations;
- Contractors with 50 or more employees and a contract of $100,000 or more would need a written affirmative action program.
- Contractors must use one of two methods to establish their benchmarks. Contractors may choose to establish a benchmark equal to the national percentage of veterans in the civilian labor force, which is published in the Benchmark Database, and will be updated annually by OFCCP. Alternatively, contractors may establish their own benchmarks using certain data from the Bureau of Labor Statistics (BLS) and Veterans’ Employment and Training Service/Employment and Training Administration (VETS/ETA) that is also published by OFCCP, as well other factors that reflect the contractor’s unique hiring circumstances.
- Contractors must document and update annually several quantitative comparisons for the number of veterans who apply for jobs and the number of veterans they hire.
- Invitation to self-identify
- Contractors must provide that information in a manner and format permitted by the appropriate State or local job service, so that it can access and use the information to make the job listings available to job seekers.
Section 503 Rehabilitation Act
Section 503 of the Rehabilitation act of 1973 prohibits federal contractors and subcontractors from discriminating against all individuals with disabilities. This act mandates that covered contractors take Affirmative Action in all areas of hiring and makes reasonable accommodation to any individual with a disability. Although this regulation has been in place since 1973, the OFCCP amended this rule in September 2013 to off-set disparity between disabled and non-disabled individuals and grant further access to accommodations to applicants with disabilities. The Final Rule also sets a utilization goal for people with disabilities as 7 percent of employees in each job category or 7 percent of the total workforce of a business contracted with the Federal Government.
The basics of an Affirmative Action Plan include;
- Do Not Discriminate
- Post EEO Posters
- Include the EEO Tag Line in Employment Advertising
- Keep Records
- Permit OFCCP Access to Books and Records During a Complaint Investigation or Compliance Evaluation
- File an Annual EEO-1 Report
- Advertise with local workforce agency, especially for veterans
- File VETS Form 4212
Posters
The law requires an employer to post a notice describing the Federal laws prohibiting job discrimination.
The “EEO is the Law” poster, prepared by the Equal Employment Opportunity Commission (EEOC), summarizes these laws and explains how an employee or applicant can file a complaint if she or he believes that she or he has been the victim of discrimination. The EEOC’s poster are available at our EAF online store.
EEO Tagline
Per the DOL Website; Federal contractors are required to state in all solicitations or advertisements for employment that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity or national origin. The EEO tagline must include all protected categories, or reflect the minimum requirements.
EEO Tagline – Sample:
[Company Name] is an equal opportunity employer and all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, national origin, disability status, protected veteran status, or any other characteristic protected by law.Record Keeping
Record keeping is an important function of an AAP as well. Employment applications and resumes should be kept for a minimum 2 years for federal contractors. EAF members can utilize our HR Records, Reports & Retention Guide located in the members only section of our website.
Filing an EEO-1 Report
Per the Equal Employment Opportunity website; the EEOC collects workforce data from federal contractors with more than 50 employees (higher thresholds apply to private employers). Employers meeting the reporting thresholds have a legal obligation to provide the data; it is not voluntary. The data is collected in an EEO-1 Report is used for a variety of purposes including enforcement, self-assessment by employers, and research. To file the EEO-1 Report follow the instructions provided by the EEOC. Currently data included in the report is categorized by race/ethnicity, gender and job category. It is important to note beginning 2018, the EEO-1 Report will include wage data. The new rules will require employers to report summary W-2 income by sex, race, ethnicity and job group. The new rule also changes the filing date to March 31, 2018. Read our legal alert for more info.
File VETS Form 4212
If following an affirmative action plan, you are required to annually file VETS Form 4212. The VETS-4212 report categories are “Protected Veterans'” as defined by the following categories:
- Disabled veterans;
- Active duty wartime or campaign badge veteran
- Armed Forces service medal veterans
- Recently separated veterans
The reported data found in the VETS 4212 Form is made available to OFCCP for compliance enforcement. You can find further reporting instructions on the DOL website.
Discrimination
Don’t forget even though you are following an Affirmative Action Plan, you are still required to be mindful of discrimination laws and civil rights. It is important to remember The Americans with Disabilities Act (ADA) & potential necessary accommodations, plus Title VII Civil Rights.
Americans with Disabilities Act
As described by the ADA National Network the ADA is a civil rights law that came into effect in 1990, it prohibits discrimination against individuals with disabilities in all areas of public life, including jobs, schools, transportation, and all public and private places that are open to the general public. The purpose of the law is to make sure that people with disabilities have the same rights and opportunities as everyone else. Employers are required to provide a reasonable accommodation for applicants to interview. A reasonable accommodation is defined as assistance or changes to a position or workplace that will enable an employee to do his or her job despite having a disability. The reasonable accommodation is required to be provided to qualified employees with disabilities, unless doing so would pose an undue hardship. This same reasonable accommodation may be required for the applicant to perform their job duties once hired.
Per the EEOC regulations a reasonable accommodation can take many forms. Ones that may be needed during the hiring process include (but are not limited to):
- providing written materials in accessible formats, such as large print, braille, or audiotape
- providing readers or sign language interpreters
- ensuring that recruitment, interviews, tests, and other components of the application process are held in accessible locations
- providing or modifying equipment or devices
- adjusting or modifying application policies and procedures.
An additional resource, the Job Accomodation Network (JAN), lists disability information by impairment, topic and limitation.
Civil Rights Alert
Title VII of the Civil Rights Act of 1964 is a federal law that prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, and religion. It generally applies to employers with 15 or more employees, including federal, state, and local governments. Currently this law does not include sexual orientation however; in July 2015 the Equal Employment Opportunity Commission (EEOC) took the position that it does include sexual orientation. Although that decision was not binding it is important to note due to its potential effects on hiring and discrimination claims. This developing area of law is important to watch and will hopefully soon have some clarification. Oral arguments for active cases involving Title VII and sexual orientation are scheduled for November 2016 with the full Seventh Circuit judges to weigh in and give final clarifications to this subject.
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