What is an Affirmative Action Plan?
An Affirmative Action Plan uses statistical analyses to ensure that an employer has created or is creating a workforce that is an authentic reflection of the demographics of their relevant, qualified labor pool by providing specific protected classes; including minorities, veterans, women and people with disabilities; with equitable access to employment opportunities. Although an Affirmative Action Program is intended to eradicate the effects of past discrimination in employment, it is meant to be inclusive without regard to race, gender, disabilities, or veteran status.
Who needs an Affirmative Action Plan?
While all employers should be mindful of EEOC (Equal Employment Opportunity Commission) laws, the only companies that are required to have a written, up-to-date AAP in place are federal contractors or subcontractors who have fifty or more employees AND:
- A contract of $50,000 or more.
- Have government bills of lading which, in any 12-month period, total $50,000 or more.
- Serve as a depository of government funds in any amount.
- Is a financial institution which is an issuing and paying agent for US savings bonds and savings notes in any amount.
How can I achieve and maintain AAP compliance?
Employers who meet the aforementioned criteria for a mandated AAP must not only have a written, up-to-date plan, but must adhere to an OFCCP-prescribed method of documenting recruiting and hiring, and tracking & analyzing employment data and compensation.
Who is required to have and maintain an Affirmative Action Program?
- A Federal construction contract or subcontract of over $10,000
- A federally assisted construction contract or subcontract of over $10,000
- A construction contract or subcontract of over $10,000 with a Federal non-construction contractor or subcontractor
- Multiple Federal construction contracts or subcontracts of less than $10,000 that, when added together total more than $10,000 within any 12 month period or can reasonably be expected to total more than $10,000 during that time
How can I achieve and maintain AAP compliance?
I – An employer who meets any of the above thresholds must comply with the requirements of the Executive Order 11246 and specifically with Title 41 of the Code of Federal regulations 60-4. The Standard Federal Equal Employment Opportunity Construction Contract Specifications, also known as the “Specifications,” describe the affirmative action obligations and detail the specific affirmative action steps construction contractors must implement to make a good faith effort to achieve the goals for minority and female participation that are listed in the bid solicitation. The Specifications are listed below:
- Ensuring and maintaining a work environment free of harassment, intimidation and coercion in all work facilities, as well as assigning two or more women to each construction project, when possible. Also, Contractors will ensure that all on-site supervisory personnel are aware of and carry out the company’s obligation to maintain such an environment, with specific attention given to minority or female individuals.
- Establishing and maintaining a current list of minority and female recruitment sources, providing written notification to minority and female recruitment sources and to community organizations when the Contractors or its unions have employment opportunities available and maintaining a record of all responses.
- Maintaining a current file of names, addresses and telephone numbers of each minority and female off-the-street applicant or referral from a union, a recruitment source or community organization, as well as a record of what action was taken in regard to each individual. If such an individual was sent to the union hiring hall for referral and was not referred back to the Contractor or, if referred, was not hired, this shall be documented in the file, as well as the reason and whatever additional actions may have been taken.
- Providing immediate written notification to the Union Director(s) when the union(s) with which the Contractor has a collective bargaining agreement has not referred a minority person or woman sent by the Contractor, or when it has come to the attention of the Contractor that the union referral process has in any way impeded the Contractor’s efforts to meet its obligations.
- Developing on-the-job training opportunities and/or participating in training programs for the areas which expressly include minorities and women, including upgrading programs, apprenticeships and trainee programs relevant to the Contractor’s needs, especially those programs funded or approved by the Dept. of Labor.
- Disseminating their EEO policy by providing it to unions and training programs, as well as requesting their cooperation in assisting the Contractor in meeting its EEO obligations. Contractors must also include their EEO policy in any policy manual or collective bargaining agreement; publicize it in the company newspaper, annual reports, etc.; conduct policy reviews with all management personnel, minority employees and female employees at least once a year; and post their EEO policy on bulletin boards accessible to all employees at each work location.
- Reviewing, at least annually, the company’s EEO policy and Affirmative Action obligation with all employees having any responsibility for hiring, assignment, layoff, termination or other employment decisions, as well as with onsite supervisory personnel prior to the onset of work at any job site. A written record of the meeting shall be maintained identifying the time, place, persons attending, subject matter discussed and disposition of subject matter.
- Disseminating their EEO policy externally by including it in any news media advertising, especially minority and female news media, and providing written EEO policy notification to and engaging in EEO policy discussion with other Contractors and Subcontractors with whom the Contractor does or anticipates doing business.
- Directing recruitment efforts, both oral and written, to minority, female and community organizations; to school with minority and female students; and to minority and female recruitment and training organizations serving the Contractor’s recruitment area and employment needs. Not later than one month prior to the date for the acceptance of applications for training by any recruitment source, the Contractor shall send written notification to the above organizations describing the openings, screening procedures and tests to be used in the selection process.
- Encouraging present minority and female employees to recruit other minority persons and women and, where reasonable, provide after-school, summer and vacation employment to minority and female youth both on site and in other areas of the Contractor’s work force.
- Validate all tests and other selection requirements where there is an obligation to do so under 41 CFR part 60-3.
- Conducting, at least annually, an inventory and evaluation at least of all minority and female personnel for promotional opportunities and encourage these employees to seek or to prepare for, through appropriate training, etc., such opportunities.
- Ensuring that seniority practices, job classifications, work assignments and other personnel practices do not have a discriminatory effect by continually monitoring all personnel and employment-related activities to ensure that both the EEO policy and the Contractor’s obligations are being carried out.
- Ensuring that all facilities and company activities are non-segregated, excepting separate or single-user toilet and necessary changing facilities which shall be provided to assure privacy between the sexes.
- Documenting and maintaining a record of all solicitations of offers for subcontracts from minority and female construction contractors and suppliers, including circulation of solicitations to minority and female contractor associations and other business associations.
- Conduct a review, at least annually, of all supervisors’ adherence to and performance under the Contractor’s EEO policies and Affirmative Action obligations.
*Source: Standard Federal Equal Employment Opportunity Construction Contract Specifications (Executive Order 11246) Regulations have been abbreviated.
II – Additionally, any construction contractor or sub-contractor that has 50 or more employees must develop and maintain an Affirmative Action Plan for Individuals with Disabilities and Protected Veterans. 41 CFR 60-300 and 60-741.
What are the penalties for noncompliance?
Federally contracted or subcontracted employers who are required to develop and maintain Affirmative Action Programs, are subject to random selection for audits conducted by the OFCCP (Office of Federal Contract Compliance Programs).
If, during an audit, a company is found to have violations, the OFCCP will generally try to bring about resolution in the form of compliance evaluation closure letters or conciliation agreements meant to apprise the employer of the violation and give them a set amount of time to correct it.
If a company fails to comply even after being given ample time to do so, they can lose their government contract, be banned from future contracting with any government agency or be ordered to pay compensation to victims of discrimination. Additionally, and even more importantly, the cost of non-compliance going through an audit relying on attorneys and/or consultants for a safe pass with the OFCCP can be prohibitively expensive. These penalties and large fees will seriously affect the bottom-line of a business.
As you can see, the scope of work involved is vast, not to mention the time and effort needed to keep records on, track and analyze each and every action.
The OFCCP estimates that it takes an average of 193.6 labor hours for companies to develop, maintain and perform annual updates on their AAPs, but that number can grow to over 396 hours for companies with over 501 employees, and that’s not including hours spent on scheduling letters and third-party disclosures.
The annualized cost burden of an AAP for both management and administrative-support hours combined is around $7830.00, with that amount climbing to $15,150 for companies with 501 employees or more, which in both cases extends to an equal amount in lost labor toward core company duties.
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- Adverse Impact
- Applicant Tracking Systems
- Compensation analyses
- Job Descriptions/Job Groups
- Guidance on AA Program Implementation
- Evaluate AA Program Support Systems
- OFCCP Audit Support
- EEO-1 and Vets-4212 Preparation and Filing
- Investigation/Resolution of Discrimination Charges