Affirmative Action Plan
Frequently Asked Questions
During your Affirmative Action Plan creation, implementation, and results, you are likely to have questions. View the most frequently asked Affirmative Action Plan questions below. If you need assistance, reach out to our team for customized help!
Frequently Asked Questions
Certain organizations that are covered by the federal affirmative action regulations must prepare affirmative action plans on an annual basis. OFCCP’s regulations state that federal contractors and subcontractors must “develop and maintain a written affirmative action program for each of its establishments…” The question then arises “How does OFCCP define the term “establishment”?”
OFCCP’s formal regulations do not include the term “establishment” in the definitions sections of the regulations. However, in OFCCP’s Federal Contract Compliance Manual, OFCCP defines an establishment as:
“A facility or unit that produces goods or services, such as a factory, office store, or mine. In most instances, the unit is a physically separate facility at a single location. In appropriate circumstances, OFCCP may consider as an establishment several facilities located at two or more sites when the facilities are in the same labor market or recruiting area. The determination as to whether it is appropriate to group facilities as a single establishment will be made by OFCCP on a case-by-case basis.”
In essence, the term “establishment” means “building” or “facility.”
The federal affirmative action regulations require that employers covered by Executive Order 11246 group employees into appropriate job groups. A job group combines positions with “similar content, wage rates, and opportunities.”
In regard to the three factors above:
- Similarity of content refers to the duties and responsibilities of positions.
- Similarity of wage rates refers to how employees are paid in relation to others in the same and similar position.
- Similarity of opportunities refers to “training, transfers, promotions, pay, mobility, and other career enhancement opportunities offered” by an organization.
Creating a job group structure is more ART than science. There is no specific way that OFCCP requires organizations to place positions into job groups other than to consider the three factors above. It is often the case that one of these factors may not be in alignment with the others, leaving employers to use their best judgment.
OFCCP’s Technical Assistance Guide (TAG) for Supply and Service Contractors provides useful guidance on the three factors noted above and how to create job groups that comply with OFCCP regulations. For example, the TAG suggests employers should use EEO-1 categories as a starting point for the creation of job groups. The TAG also suggests that employers should consider concepts such as supervisory responsibilities, function of jobs, levels within job families, and pay ranges associated jobs. While the TAG states that employers should consider whether job groups are a sufficient size to conduct meaningful statistical analyses, there is no minimum or maximum number required for a job group.
The decision on which applicant track system (ATS) and which human resource information system (HRIS) can have significant impact on an organization’s ability to evaluate personnel decisions. There are various factors that organizations should consider in choosing HR systems.
In the affirmative action realm, it is critical to be able to collect, retain, and report on data required for affirmative action plans and other analyses required by OFCCP. Here are four key affirmative action-related ideas to consider when choosing HR systems:
Can the system track and store crucial data?
- Data for an HRIS: unique identifier, race, sex, disability status, protected veteran status, pay, job title, location
- Data for an ATS: unique identifier, race, sex, disability status, protected veteran status, , disposition information, job title, location, requisition number
Can the system provide for effective data extraction?
- There should be quick and efficient access to data
- The system should ensure the integrity, completeness, and consistency of the data
Can the system integrate required forms?
- For example, the system should be able to show applicants or employees OFCCP’s required self-identification form for disability status
Can the system protect data and keep it confidential?
- A system should keep protected data such as disability status sealed away from users that should not have access to this data
Federal contractors and subcontractors frequently use temporary agencies and executive search firms to assist in finding candidates. There are important recordkeeping requirements associated with the use of temporary agencies and executive search firms.
OFCCP requires that federal contractors and subcontractors collect and retain records on candidates for open positions. Employers are allowed to use third parties such as temporary agencies and executive search firms to find and evaluate candidates. However, OFCCP’s FAQs concerning Internet applicants make it clear that “the use of a recruiting firm…does not relieve a contractor of its recordkeeping obligations…[R]ecordkeeping obligations belong to federal contractor or subcontractor.”
A temporary agency or executive search firm may be used to find candidates for a federal contractor or subcontractor. The federal contractor or subcontractor must have access to records concerning outreach efforts made by a third party and records concerning how candidates are evaluated. More importantly, the federal contractor or subcontractor be able to access records on all candidates who were viable candidates for an open position, regardless of whether they were directly submitted to the federal contractor or subcontractor.
A temporary agency or executive search firm may also be used to evaluate candidates. In this case, the third party “stands in” for the federal contractor or subcontractor. Any recordkeeping requirements that would apply to the federal contractor or subcontractor would apply to the third party.
Recordkeeping rules are different when a federal contractor or subcontractor uses a third party to provide temporary workers who remain on the payroll of the third party. In this situation, recordkeeping obligations typically begin to apply when a federal contractor or subcontractor considers temporary workers for conversion to its regular workforce.
A best practice is to have a contract with temporary agencies and executive search firms that makes the recordkeeping requirements of the federal contractor or subcontractor clear. OFCCP will expect that federal contractors and subcontractors can always produce required records. Thus, third parties should be required by contract to collect and retain records on behalf of the federal contractor or subcontractor.
Federal contractors and subcontractors routinely ask whether they are required to include interns and temporary employees in their affirmative action plans (AAPs). OFCCP has produced no specific guidance regarding interns. The closest OFCCP has come to providing guidance on student workers at universities. OFCCP has stated that it “will not cite contractors for excluding student workers from AAPs or personnel activity data submitted to OFCCP during a compliance review.”
Many organizations choose to exclude interns from affirmative action plans because of their tenuous connection to the organization. If interns are included in EEO-1 reports and are paid through the employer’s traditional payroll system, federal contractors and subcontractors should consider including interns in statistical reporting. When interns are included in affirmative action plans, one option would be to place interns in their own job groups so that they do not affect analyses for regular, on-going employees.
OFCCP has provided some limited guidance on temporary employees. In its regulations for protected veterans, the agency defines the positions that must be listed with the state employment service. These positions include positions that will be “full-time employment, temporary employment of more than three days’ duration, and part-time employment.” While there is no additional firm guidance on temporary employees, this provision suggest that temporary employees should be included in affirmative plans and all statistical reporting.
In regard to temporary employees, employers should distinguish between temporary employees who are on an employer’s direct payroll and temporary employees who are paid through an agency. Temporary employees who are paid through an agency should typically NOT be included in the employer’s affirmative action plan. These workers are the employee of another organization. Note that federal contractors and subcontractors may have some co-employment responsibilities for temporary workers who are not on their payrolls. There may also be some reporting requirements if temporary workers are converted from agency status to an employer’s payroll.
Federal contractors are encountering situations where employees do not want to provide race or sex information. Contractors are required to gather race, ethnicity and sex information from all employees. This information is used in multiple reports in affirmative action plans and in other required reporting.
Information on race and sex is typically collected through a voluntary self-identification process. However, employers are experiencing the issue of employees choosing not to self-identify. Some HR information systems have the capability for employees to go in and add their race and gender information at any time. Employers with such a system may want to encourage employees to update their race and gender information.
When employees fail to provide race or sex information through self-identification, employers are allowed to use other methods to gather this information. Employers may use visual observation or review post-employment records for these purposes. However, federal contractors should NOT use other methods to override information provided through self-identification when a known race or sex is provided.
OFCCPs regulations require federal contractors and subcontractors to provide applicants and employees with opportunities to self-identify their status as an individual with a disability or a protected veteran. However, low self-identification rates by applicants and employees are a common problem for employers. Below are ideas on how to increase the self-identification rates for individuals with disabilities and protected veterans.
- Solicit information as early as possible in the application process
- Ensure that new employees are provided with an opportunity to self-identify during or before employee orientation
- Communicate the importance of self-identification to employees
- Hold a self-identification campaign and promote the value of self-identification during the campaign
- Be transparent on how and why self-identification forms are being used
- Ensure that all information on disability and veteran status is kept confidential and communicate this fact to applicants and employee
- Provide employee-friendly methods of updating self-identication information in your HR information system
- Create a culture that promotes the value of individuals with disabilities and protected veterans
- Implement employee resources groups for individuals with disabilities and protected veterans
- Highlight programs related disability and veteran inclusion and your organizatin’s affirmative action plans
Recognize that it may take time to increase rates of self-identification for individuals with disabilities and protected veterans. Give the ideas above time to work, and consider new programs if the ideas above do not fit your organization.
Between the expansion of technology and the COVID -19 pandemic, many organizations have an expanding number of employees who work from home or another remote location. Federal contractors and subcontractors that must prepare affirmative action plans (AAPs) are required to include all employees in AAPs. This means that federal contractors and subcontractors must consider how remote workers should be placed in affirmative action plans.
OFCCP’s regulations under Executive Order 11246 do not explicitly discuss remote workers. However, these regulations provide three options for situations where an employee is not included in an AAP for his or her physical location:
- The employee can be included in the AAP for the manager to whom the employee reports.
- The employee can be included in the AAP that cover the location of the HR team that supports the employee.
- The employee can be included in the AAP where selection decisions regarding that employee were made.
OFCCP has a series of frequently asked questions that provide additional insight into how remote workers can be placed in AAPs. For example, one of these FAQs makes it clear that organizations should typically avoid placing all remote workers in an AAP that only includes these remote workers.
A common concern in the affirmative action realm is that if an organization is not in compliance with OFCCP’s regulations, that organization will be fined. However, OFCCP has not authority under its regulations to issue a fine. OFCCP is unlike other agencies within the Department of Labor such as OSHA or the Wage and Hour Division that can assess a fine during enforcement proceedings.
OFCCP does have the right to take action against federal contractors and subcontractors for non-compliance. The agency’s Federal Contract Compliance Manual has an entire chapter devoted to “Resolution of Noncompliance.” The kind of action OFCCP will take depends on the nature and severity of the non-compliance.
- When OFCCP finds minor technical issues that can be easily resolved, the agency may allow the employer to correct the issue during the course of a compliance review.
- When OFCCP finds major technical issues, issue a Conciliation Agreement (CA) where an organization is not complying with the agency’s regulations in some significant way, the agency will issue a Conciliation Agreement (CA) requiring the organization to fix the relevant problem.
- When OFCCP finds potential discrimination, the agency will issue a Notice of Violation (NOV) that describes the alleged discrimination and provides corrective actions. This may include back pay and other forms of monetary and non-monetary relief.
- When an organization refuses to comply with OFCCP’s regulations, the agency may recommend the suspension or cancellation of current or future federal contracts and subcontracts.
Even in the cases where OFCCP asks for monetary relief to rectify alleged discrimination, the agency is not issuing a fine. It is acting to place alleged victims of discrimination in the position they would have been absent the discriminatory actions.
OFCCP compliance reviews may result in significant consequences for an organization despite the agency’s inability to issue fines. Even where there is no discrimination found, a CA may result in significant costs and burdens to an organization. Where there is alleged discrimination, enforcement proceedings may result in significant monetary settlements. In recent years, OFCCP has been published CAs on its website, resulting in a potential public relations issue.
After the affirmative action plans (AAPs) are done, it is important to implement the AAPs. Federal contractors and subcontractors should also recognize that they have responsibilities beyond preparing AAPs.
Use the AAP results as a diagnostic tool. Look for trends and identify priorities. Consider the following questions:
- Are there recurring placement goals year over year?
- Compare the total number of placement goals for this year with placement goals from prior years
- Are there significant problems identified in data?
- Find job groups and/or locations with consistent goals or goals showing high levels of statistical significance
- Find job groups that have 0% representation for any protected class
- Find personnel activity for job group, job titles, and/or locations that have statistically significant disparities
- Are there explanations for why goals or statistical disparities exist?
- Determine your organization’s biggest risk areas and which areas have the great possibility for change
- Determine whether statistical data actually provides a true picture of what is occurring
- Have actions been taken for all classes covered by OFCCP regulations?
- Make outreach efforts to recruit and retain individuals with disabilities and protected veterans
- Evaluate outreach efforts for all protected classes, especially individuals with disabilities and protected veterans
Once issues are identified, take action to correct potential problems and fully implement your affirmative action plans
- Actions to take to increase employment of minorities, females, individuals with disabilities, and protected veterans
- Make targeted outreach and recruitment efforts
- Place job postings on sites and in ads that may attract diverse publications
- Attend career fairs
- Develop advocacy groups
- Develop relationships with secondary schools and higher education program that can provide members of diverse populations
- Make calls and visit agencies that work with diverse populations
- Conduct mock interviews for persons who are unemployed or at schools with a significant enrollment of diverse populations
- Actions to take when statistical disparities exist
- Review data for accuracy
- Determine whether selection process for the group(s) in question are appropriate for the relevant job(s)
- When tests are used, ensure they are validated for your company and location
- Conduct an analysis to identify specific steps in the selection process that may be causing a disparity
- If disparities exist involving promotions, review policies for career progression and competitive promotions
- If disparities exist regarding turnover, know why this turnover is occurring and whether employees are leaving voluntarily or involuntarily
- Actions to take to increase internal awareness of affirmative action obligations exist
- Engage in holistic review practices to identify relationships between attraction, selection, and retention
- Identify potential trends in the workforce
- Understand where opportunities now and where they may exist in the future
- Tie metrics to current initiatives and programs
- Engage with diversity and inclusion teams