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OFCCP Updates Functional Affirmative Action Plan (FAAP) Directive

OutSolve

DIRECTIVE (DIR) 2013-01 Revision 1

OFCCP has renewed through the OMB it's Functional Affirmative Action Plan process. This directive will be in effect through April 30, 2019. While not much has changed, its important to make note of the basic requirements for contractors to maintain a Functional AAP over an Establishment AAP.

Please see requirements and link to the entire text below (particularly the text stating that functional plans will be audited at least once during the three year term):

BASIC PRINCIPLES OF FUNCTIONAL AAP AGREEMENTS:

A FAAP agreement will be implemented only after the contractor has received the written approval from the OFCCP Director, or his or her designee.

Applications, modifications, and certifications are not automatic and must be approved by the OFCCP Director, or his or her designee.

OFCCP will consider whether a contractor is currently reporting its compliance under the requirements of a conciliation agreement when determining whether to approve a FAAP agreement.

Notification from OFCCP of receipt of the contractor’s request for a FAAP agreement does not constitute approval of the request. The requirement to develop, implement and maintain establishment-based AAPs continues in effect until the contractor receives notice that the FAAP agreement has been approved by the OFCCP Director and the contractor has notified OFCCP that its FAAPs have been implemented.

OFCCP will consider EEO violations of the requesting contractor for the past three years from the date of the application, including EEO violations from other local, state and federal government agencies. These findings may impact the approval of the contractor’s FAAP agreement request.

A FAAP agreement must cover all employees within the contractor’s workforce. However, this does not mean that the entire workforce must be covered by FAAP(s). In some cases, it may be appropriate for a contractor to use both FAAPs and establishment-based AAP(s). For example, a contractor has establishments that are located in Seattle, Denver, and Washington, DC. Each of these establishments includes a Marketing unit and Research functions. The functional AAP agreement might permit the contractor to develop and implement two functional AAPs: one for Marketing and one for Research. The remaining employees in each establishment would be covered in separate establishment-based AAPs and reflected in the FAAP agreement addenda. See Attachment A.

Contractors with approved FAAP agreements must also comply with the affirmative action requirements of Section 503 of the Rehabilitation Act of 1973, as amended (Section 503) and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended (VEVRAA). Contractors must comply with their Section 503 and VEVRAA written affirmative action obligations either by: (a) creating and maintaining Section 503 and VEVRAA FAAPs for the same functional or business units that are covered by their Executive Order 11246 FAAPs; or (b) creating and maintaining establishment-based Section 503 and VEVRAA AAPs for each of its establishments. Contractors must inform OFCCP which method they will use to comply with its Section 503 and VEVRAA affirmative action obligations during the FAAP negotiation or certification process. Under either arrangement, contractors must make their AAPs and/or FAAPs available for review at each of their establishments.

The contractor must demonstrate the ability to efficiently manage and monitor all personnel actions, including recordkeeping and affirmative action responsibilities for all functional or business units regardless of size.

A FAAP agreement will not relieve a contractor of its obligation to comply with OFCCP’s regulations at 41 CFR Chapter 60, and OFCCP will not negotiate its procedures for determining compliance with its regulations.

A FAAP agreement will not contain provisions limiting access or the manner and means by which compliance evaluations will be initiated or conducted. Such matters are not negotiable.

OFCCP will use the information that the contractor provides in support of its request for a FAAP agreement solely for the purpose of evaluating the request.

Upon request, the contractor must provide OFCCP information about all format(s), including specific electronic formats, in which the contractor maintains its records and other information. The contractor agrees to provide all documents relating to the FAAP agreement, including modifications, updates, and certifications, in any of the formats in which they are maintained, as selected by OFCCP.

The federal contractor agrees to submit, at a minimum, its personnel activity, i.e., applicant flow, hire, promotion, and termination, and compensation data in a readable and usable electronic format, when so requested during a compliance evaluation. Acceptable formats include MS Excel or MS Access.

All FAAP agreements will expire three years after the date of approval.

Contractors with approved FAAP agreements will undergo at least one compliance evaluation during the term of their FAAP agreement.

Only functional units identified in the approved FAAP agreement are covered.

FAAP units that have undergone a compliance evaluation will be exempt from another evaluation for 24 months from the date of closure of the previous compliance evaluation.

https://www.dol.gov/ofccp/regs/compliance/directives/Dir2013_01_Revision1.html

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