Affirmative Action Plan

Established in 1965, the Office of Federal Contract Compliance Programs (OFCCP) is a civil rights agency within the United States Department of Labor. OFCCP maintains a headquarters in Washington, DC, and several regional offices across the country. The headquarters office sets and coordinates the agency’s enforcement priorities, compliance evaluation scheduling process, compliance assistance activities, staff and contractor education, contractor outreach and engagement, worker and community outreach, and performance data collection and reporting. The agency’s regional offices oversee, conduct, and coordinate compliance evaluations and complaint investigations, and local and regional stakeholder engagement.

OFCCP protects the employment rights of job applicants and employees of companies that are federal contractors. Federal contractors are covered by the three laws that OFCCP enforces if they hold a qualifying federal contract or subcontract that meets certain threshold requirements.

• Executive Order (EO) 11246 prohibits discrimination and requires affirmative action for all applicants and employees to ensure equal employment opportunity without regard to race, color, sex, sexual orientation, gender identity, religion, and national origin. In addition, contractors are prohibited from discharging or otherwise discriminating against applicants or employees who inquire about, discuss or disclose their compensation or that of others, subject to certain limitations. EO 11246 applies when a company has federal contracts or subcontracts exceeding $10,000.
  
  
• Section 503 of the Rehabilitation Act of 1973 (Section 503) prohibits discrimination and requires affirmative action in all employment practices for qualified individuals with disabilities. A disability is defined as a physical or mental impairment that substantially limits one or more major life activities of such individual, a record of such an impairment, or being regarded as having such an impairment. Section 503 applies when a company has a federal supply and service or direct (i.e., not federally-assisted) construction contract or subcontract exceeding $15,000. It does not apply to federally-assisted construction contracts.
  
  
• The Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA) prohibits discrimination and requires affirmative action in all employment practices for protected veterans. Protected veterans are disabled veterans, recently separated veterans, active duty wartime or campaign badge veterans, and Armed Forces service medal veterans. VEVRAA applies to a company with a federal supply and service or direct construction contract or subcontract of $150,000 or more. It does not apply to federally-assisted construction contracts. Employers that are federal contractors are covered by the basic nondiscrimination and equal employment opportunity requirements of these three laws regardless of how many employees they have. However, those federal contractors that meet certain dollar thresholds (i.e., a contract of $50,000 or more for EO 11246 and Section 503; a contract of $150,000 or more for VEVRAA) and have at least 50 employees must have a written affirmative action program (AAP). Federal contractors must prepare a separate written AAP for each law for which they have met the dollar and employee thresholds.

Depending on the number of employees at each location, facility, or establishment and the dollar amount of the contract, some federal contractors are required to develop a written AAP. If a contractor is required to have an AAP, it must develop it within 120 days from the start of the contract and must update it annually. Having and implementing the required AAP is the foundation upon which employers base their compliance.

An AAP is a management plan for ensuring that covered federal contractors are providing applicants and employees with equal employment opportunities. An AAP documents the organizational structure, demographic composition of the workforce, and policies, practices, and procedures that the company will use to make sure that qualified applicants and employees are receiving an equal opportunity to apply and compete for jobs, promotions, training, and other employment opportunities.

Contractors with 50 or more employees that meet the respective thresholds set for the dollar amount of the contract are required to develop written AAPs. The dollar thresholds are $50,000 or more under EO 11246 and Section 503, and $150,000 or more under VEVRAA. Multi-establishment companies must have an individual AAP for each location, facility, or establishment that has 50 or more employees.

OFCCP laws include thresholds for determining which contractors must have AAPs. Each law and the applicable AAP threshold are explained below.

• Executive Order (EO) 11246: Supply and service contractors that have 50 or more employees and a contract of $50,000 or more are required to develop and maintain a written EO 11246 affirmative action program. Construction contractors are not required to have an AAP but rather have their own specific affirmative action requirements.
  
  
• Section 503 of the Rehabilitation Act of 1973 (Section 503): Covered contractors that have 50 or more employees and a contract of $50,000 or more are required to develop and maintain a written Section 503 affirmative action program. This requirement applies to both supply and service and direct (i.e., not federally-assisted) construction contractors.
  
  
• The Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA): Covered contractors that have 50 or more employees and a contract of $150,000 or more are required to develop and maintain a written VEVRAA affirmative action program. This requirement applies to both supply and service and direct (i.e., not federally-assisted) construction contractors

What are some of the other affirmative action compliance responsibilities of federal contractors? The specific obligations vary somewhat under the three laws; however, contractors should be aware of all of the requirements. Below is a list of important compliance requirements.

• Create a written affirmative action plan and update it annually.
  
  
• Recordkeeping, including annually collecting, maintaining, and analyzing personnel activity data on the basis of race, sex, disability status, and veteran status. Personnel activity data includes, but is not limited to, hiring, assignments, rates of pay or other compensation, promotions, training, transfers, layoffs or terminations, recalls from layoffs, and demotions.
  
  
• Incorporate the required Equal Opportunity (EO) clause(s).
  
  
• Post the Equal Employment Opportunity (EEO) poster and other required notices and supplements at your establishment and online if an online application system exists.
  
  
• Insert the EEO tag line into job advertisements. When posting open positions, contractors must include an EEO tagline that states it is an Equal Opportunity Employer (or “EOE”) and that minorities, women, veterans, individuals with disabilities, and others are encouraged to apply. Contractors can abbreviate references to the protected groups in several ways. For example, for a contractor complying with all three laws enforced by OFCCP, one acceptable tagline might be “EOE including disability/vet.” Another is “EOE race/color/religion/sex/sexual orientation/gender identity/national origin/disability/vet.” The intent is to provide as much notice as possible about the protected groups while allowing contractors some flexibility for constructing their taglines.
  
  
• Take specific, documented actions to attain the aspirational 7 percent utilization goal by job group or workforce, depending on the contractor’s size, for qualified individuals with disabilities.
  
  
• Invite applicants and employees to voluntarily self-identify as qualified individuals with disabilities or protected veterans.
  
  
• Conduct periodic reviews of all physical and mental job qualifications to ensure that qualified individuals with disabilities are not eliminated from consideration on the basis of disability, maintaining documentation on the results of the reviews as well as any corrective actions are taken, and removing job qualifications that are not job-related and consistent with business necessity.
  
  
• Provide reasonable accommodation to qualified individuals with disabilities and disabled veterans, upon request, unless the accommodation would cause an undue hardship.
  
  
• List all employment openings with the appropriate state or local employment service delivery system (ESDS). Examples of an ESDS are state and local employment and career agencies, state job banks, and local One-Stop Career Centers. Generally, contractors must send their job listings to the ESDS where the job openings occur. However, this VEVRAA requirement gives contractors other listing options when jobs are 100 percent telework or remote.
  
  
• Establish an annual hiring benchmark or adopt the national benchmark for hiring protected veterans, and compare the number of protected veterans who apply for jobs and the number of protected veterans hired. The benchmark is used as a measure of progress; no penalty is assessed for not reaching the benchmark.
  
  
• Provide OFCCP access to records during a compliance evaluation or a complaint investigation.

The Contractor Portal is a new OFCCP platform where covered federal contractors and subcontractors (“contractors”) must certify whether they are meeting their requirement to develop and maintain annual AAPs. Scheduled contractors will also be able to use the portal to upload their AAP(s) during a compliance evaluation

Click here to learn more about the OFCCP Contractor Portal (AAP-VI)