Brief review of all three Affirmative Action Plans
In May 2015, OFCCP released a new series of sample affirmative action plans to replace the sample plan previously available on its website. Of particular interest are the first samples of the updated Section 503 (IWD) and VEVRAA (Vets) components.
The sample plans present a view of OFCCP’s expectations for plans constructed under its revised regulations. They include new policy text and sample numerical reports that reflect the new record keeping requirements. Since many contractors have already designed plans under the new regulations – and some of the reporting may differ in format/content/scope, compared to the released samples – we’ve outlined the changes to inform you of what portions can be included in a modified version or omitted all together.
Additionally, on the site, OFCCP provides a couple important points in its introduction that are worth noting.
- “The following sample AAPs are for illustrative purposes only and do not represent the only styles and formats that meet regulatory requirements”
- “When preparing AAPs, they should be customized to reflect an employer's organizational structure, policies, practices, programs, and data.”
The two quotes are important because they help affirmative action plan development firms, like OutSolve, clarify that the OFCCP format is not a mandatory template that people are expected or more importantly, required, to follow. At OutSolve, for example, we provide many reports in a very similar format while others are designed achieve the same compliant objective, but in a more efficient manner. Also, different organizations have different needs that must be reflected using other suitable methods. OFCCP has been accepting, and even showing great appreciation for well-organized and effective plan types for years. Unfortunately, many contractors will undoubtedly expect consulting firms to follow the OFCCP structure to the letter. We can comfortably say that expanding AAPs upon the basic boilerplate and tailoring plans to the compliance needs of set clients is ok, and often more acceptable.
A Brief Review of the Updated EO 11246 Sample Affirmative Action Plan
With the updated sample plans being released there is a lot of content to review and consider. While the IWD and Vets plans are essentially new to readers, the Women and Minority AAP has been previously modified and the new version does not offer significant changes. There have been enhancements to some of the reporting to present consistent formatting with the revised IWD and Vets versions, but for the most part this is cosmetic. One instance of this formatting change is present in the Workforce Analysis section. The specific content remains unchanged, but the graphical display has shifted for a cleaner presentation of the material.
The one notable change in the new version of the EO 11246 version is presented in the Support Data section of the plan where it displays the personnel actions that have taken place during the prior plan year. In neither the prior version, nor the current sample is the inclusion of this material mandatory. It is specifically stated in the table of content as “optional inclusion in AAP”. Even with it being optional, the revised sample reaches further to suggest the inclusion of Termination, Layoff and Recall information (not previously displayed).
While all personnel actions require you to track and retain the documentation, there is not a requirement that you count and report in the plan document itself. Unless you read the template thoroughly, the sample version provided by OFCCP would give the appearance that it is.
A Review of the Section 503 (IWD) and VEVRAA (Vets) Sample Affirmative Action Plan
Prior to March 2014, the affirmative action plan requirements for IWD and Vets were based primarily on maintaining non-discrimination policies. Now, in the post March 2014 world, Federal contractors have a more sophisticated regulatory program to follow. Instead of collecting data, analyzing it and adapting to the results of one affirmative action plan, contractors now have to manage similar processes for three affirmative action plans.
With the IWD and Vets’ plans being the primary focus of our discussion, we will briefly review the required content for each section of the plan including the policies and numerical output in the remainder of this article. Not coincidentally, the required elements for the IWD and Vets’ plans are almost identical. In an effort to tailor the article to a manageable read, we’ll present the material in a combined format and reference the regulations as Section 503, VEVRAA and follow the order of the sample version(s) Table of Contents:
II. Policy Statement on Equal Employment Opportunity for Individuals with Disabilities/Veterans [41 CFR 60-741.44(a)], [41CFR 60-300.44(a)]
The requirement here is that an EO Policy is provided and supported by the top executive in the organization.
III. Review of Personnel Processes [41 CFR 60-741.44(b)], [41 CFR 60-300.44(b)]
This is another text section affirming that the contractor will employ equal opportunity and at least periodically (not defined further) review personnel processes to ensure non-discrimination.
IV. Review of Physical and Mental Job Qualification Standards [41 CFR 60-741.44(c)], [41 CFR 60-300.44(c)]
This is an important section that tends to be overlooked. This section requires an actual schedule for the review of job qualifications in addition to the clarification that providing reasonable accommodations is required. This part of the narrative also addresses creating a reasonable accommodation process. Having the process defined is not mandatory but the OutSolve team recommends having them defined and the text of the regulations suggests some Best Practices.
V. Reasonable Accommodation [41 CFR 60-741.44(d)], [41 CFR 60-300.44(d)]
As defined in the regulations, having a documented Reasonable Accommodation process is not mandatory. However, it is recommended and is considered a best practice. We recommend having a process in place for employees to request an accommodation and for the contractor to have the ability to respond and track the activity. It is simply common sense.
VI. Anti-Harassment Procedures [41 CFR 60-741.44(e)], 41 CFR 60-300.44(e)]
There are few details provided in this section. This is a text requirement where contractors must have policy and procedures in place to ensure that IWD and veterans are not subject to harassment. There are limited details provided as to how to accomplish this aside from providing contact information to allow an employee to file a complaint.
VII. External Dissemination of Policy [41 CFR 60-741.44(f)], [41 CFR 60-300.44(f)]
External dissemination of policy is an area that contractors struggle with. There is an ongoing emphasis by OFCCP during audits to ensure that contractors are sending out the clear message that they are Federal contractors and the organization they do business with must also engage in non-discriminatory business practices. In the AAP, contractors must spell out that they are meeting expectations to:
- Notify subcontractors, vendors and suppliers of their obligations
- Notify unions of their obligations
VIII. Outreach and Positive Recruitment [41 CFR 60-741.44(f)], [41 CFR 60-300.44(f)]
This section is an extension of the requirement to externally disseminate the company’s policy. The expectation is for the contractor to undertake outreach and positive recruitment activities that effectively bring IWD and Vets to the company as openings occur. This has been a high priority item for OFCCP in current audits. The expectation goes beyond the effort itself, as contractors must now show that their program has been documented, reviewed and revised if deemed to be insufficient. We’ll expect more scrutiny in future audits around this topic.
IX. Internal Dissemination of Policy [41 CFR 60-741.44(g)], [41CFR 60-300.44(g)]
Internal dissemination of policy is an area that contractors are familiar with. In the new plan requirements, contractors will need to identify that they have advanced their communication systems to ensure that they:
- Make copies of the AAP available for public inspection upon request (excluding analyses)
- Place required posters in facilities and work areas
- Include policy information in employee manuals and in periodic training
X. Audit and Reporting System [41 CFR 60-741.44(h)], [41 CFR 60-300.44(h)], and
XI. Supporting Data
Section 10 and Section 11 are new to the IWD and Vets’ affirmative action plans and they are sure to be the sections that draw the most attention. Having an audit and reporting system in itself is not new to AAPs. However, the sample template provided is very lengthy and detailed and readers need to understand that the format used by OFCCP is not mandatory. Contractors must document the effectiveness of their affirmative action program and take steps to ensure compliance however; creating an exhaustive list for the transition is not a necessary part of any plan submission during an audit.
Specific to Section 11, there is bound to be a lot of discussion and confusion on the topic because in the regulations there is no supporting data requirement as shown in the sample plan. The sample plan displays a table of transactions showing hires, applicant, promotions, terminations, layoffs and recalls.
Separately the sample reflects an applicant flow log that includes detailed records including disposition of applicants. While maintaining detailed records on transaction history and applicant flow is important, we cannot recommend submitting this level of detail to OFCCP during the initial submission to the scheduling letter.
XII. Responsibility for Implementation of AAP [41 CFR 60-74 1.44(i)], [41 CFR 60-300.44(i)]
Section 12 is basic and is not different from previous plan formats. The contractor will want to identify who is responsible for the plan and what their compliance duties are.
XIII. EEO and Affirmative Action Training [41 CFR 60-7 41.44(j)], [41 CFR 60-300.44(j)]
One of the more basic requirements is periodic training. While annual training is not necessary, it is encouraged and can be useful as part of an annual assessment, and update to HR activities. Persons involved in or responsible for hiring activities, such as management and recruitment staff, must be made aware of their compliance requirements. In the text the plan would identify what the content of the training is and when it occurred.
XIV. Applicant and Hiring Data [41 CFR 60-741.44(k)], [41 CFR 60-300.44(k)] Section 14 is new and it includes a numerical report that identifies three years of record keeping to track the following (one report for each of the two plans, IWD and Vets). Note that for any year that the record keeping was not yet a requirement the developer can leave it blank or add a N/A for not applicable. The report itself includes the following counts:
- Number of applicants who self-identify as a protected veteran or an IWD
- The total number of job openings for each year
- The total number of jobs filled for each year
- Total number of applicants for all jobs
- The number of applicants who are veterans or IWD hired
- The total number of applicants hired
XV. Utilization Analysis [41 CFR 60-741.45(d)], Hiring Benchmarks [41 CFR 60-300.45]
There are distinct differences in the reports needed for the disability goals and the veteran benchmark. Contractors need to be aware that the disability goals are based on a fixed goal, currently 7%. This goal is analyzed by job group by comparing it to the current incumbent percentage of IWD.
The veteran benchmark is analyzed as a company-wide figure and is focused on the hiring rate of veterans over the previous plan year. The veteran benchmark is measured against the plans overall population, and not by individual Job Groups. The sample plan for IWD includes a list of the job groups and the jobs included in each group. The regulations do not require the detailed job group information. Including that extra detail would be up to the contractor.
For Section 15 we have the new Utilization (IWD) and Benchmark (Vets) reports. The reports are simple and easy to populate. For each job group users will put the following into columns:
For Individuals with a Disability (IWD)
- Job Group Code/name
- Total number of employees
- Number of employees who identified as IWD per job group
- Utilization rate if IWD per job group (as a %)
- Underutilized (Y/N)
For all contractors, the conclusion offered here is that the OFCCP sample plans can be a useful reference tool, but prior to developing, implementing or submitting an AAP, contractors should make use of expert oversight. Misinterpretation of any complex compliance requirement can easily lead to irreversible problems when content not vetted by an expert is submitted to the Department of Labor.
This article is provided for educational purposes and is not intended as legal advice. For legal assistance please contact counsel.
If you're looking for more information on Affirmative Action Plans and Affirmative Action Planning, you may be interested in our past webinar, "Affirmative Action 101."