The U.S. Department of Labor’s Office of Contract Compliance Programs (OFCCP) has released a list of 12 large federal construction projects (megaprojects) that it has designated as being eligible for its Mega Construction Project Program for the 2023 fiscal year (the “List”). The Mega Construction Project Program is intended to assist federal construction contractors in complying with their federal affirmative action obligations as mandated by Executive Order 11246, Section 503 of the Rehabilitation Act and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 and their implementing regulations. The Mega Construction Project Program’s goal is to create equal opportunity in the construction industry on large federally funded projects.
The program targets large federal construction projects with budgets of $35 million or more that have “the greatest potential to make a positive economic difference in a community.” The methodology OFCCP used to select the 12 projects shows it included those:
- Located in geographic areas with higher unemployment rates
- Situated in areas where it has an office
- That are not beyond the pre-bid stage
- With a projected start date before the end of 2025
However, no more than one project per state and two per region were designated.
The OFCCP has indicated it will engage with the contractors on the designated projects to assist them in complying with their obligations. The OFCCP released a Mega Construction Programs Toolkit containing information about the program and the designation criteria. The OFCCP will offer designees compliance assistance, engage in outreach with stakeholders through Equal Employment Opportunity Committees, evaluate a designee’s efforts to recruit and hire talent from underrepresented backgrounds, and promote awareness and outreach of eligibility for Indian preferences in communities near Indian reservations.
As part of the program, the OFCCP listed 16 Affirmative Action Steps that construction contractors can review to aid in their understanding of their affirmative action obligations.
These steps include:
- Recruiting women and minorities from community organizations, schools and training organizations
- Encouraging employees to recruit women and minorities
- Tracking recruitment success
- Tracking applicants
- Notifying the OFCCP if a union referral impedes Equal Employment Opportunity (EEO)
- Developing on-the-job training opportunities
- Disseminating EEO policy externally
- Sharing its EEO policy with unions and training programs
- Reviewing EEO obligations with employees involved in employment decisions
- Annually reviewing supervisor performance with EEO obligations
- Evaluating promotion opportunities for women and minorities
- Ensuring a harassment-free workplace
- Conforming to Uniform Guidelines on Employee Selection Procedures (UGESP)
- Monitoring personnel practices for unintended discriminatory effects
- Ensuring nonsegregated facilities
- Documenting solicitations from minority and female contractors.
A key takeaway from these steps is for contractors to engage not only in necessary recruitment efforts, but to make sure those efforts are being properly tracked and monitored. These steps encourage a company to focus on recruitment and training, and to be transparent about their Affirmative Action Program (AAP) and EEO efforts and policies.
The OFCCP’s release of the List is a change from the typical Corporate Scheduling Announcement Lists that the OFCCP releases to notify specific organizations that they will be subject to review as this List only identifies the projects that will be subject to increased oversight by the OFCCP. In particular, the List does not initiate a compliance review, which is done through a Construction Scheduling Letter and Itemized Listing sent from the OFCCP to the companies that are going to be evaluated. Hence, any company that may perform work for one of the projects on the List should review, ahead of time, the affirmative action requirements they will be obligated to comply with if they work for one of these projects.
If a company is planning to do work for any of the projects on the List and is unsure what actions to take and/or policies to adopt to be compliant with the applicable AAP regulations, they should seek guidance from experienced counsel as complying with affirmative action obligations is not merely a paper exercise and can be quite onerous.
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