DOL Seeks Approval of New Approach for Monitoring Construction Contractor Compliance with Affirmative Action Requirements

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The Department of Labor’s Office of Federal Contract Compliance Program (OFCCP) recently requested approval from the Office of Management and Budget (OMB) of a new approach to review federal construction contractors’ compliance with OFCCP’s Affirmative Action Program (AAP) and record-keeping requirements (view a copy of the supporting statement for the request). OFCCP hopes to employ less burdensome compliance checks in greater quantity as opposed to more intensive compliance reviews or audits. In addition, OFCCP plans to harmonize the procedures by which compliance checks are conducted.

For federal contractors who satisfy the jurisdictional thresholds, OFCCP is charged with administering and enforcing three equal employment opportunity laws: Executive Order 11246, Section 503 of the Rehabilitation Act of 1973, and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA). These laws are designed to prevent discrimination on the basis of race, color, religion, sex, sexual orientation, gender identity, natural origin, and disability, and to prevent discrimination against protected veterans, including disabled, recently separated, and active duty veterans. The laws also require federal contractors to implement affirmative action programs for marginalized groups, disabled individuals, and veterans, and to avoid retaliatory actions against employees for discussing salary or pay.

Currently, under 41 CFR §§ 60-1.20, 60-300.60, and 60-741.60, OFCCP may conduct compliance evaluations that consist of one or any combination of investigative procedures, including a compliance review, an off-site review of records, a compliance check, and/or a focused review. Federal construction contractors are currently subject to compliance reviews that are lengthier and more involved than compliance checks. If OFCCP’s proposal is approved, future compliance check notices to contractors will likely request the following:

  • Personnel records that list construction trade employment activity (applicants, hires, promotions, layoffs, recalls, voluntary terminations, and involuntary terminations), including the name, job classification, gender, race and/or ethnic designation for each employee or applicant (41 CFR § 60-1.12(a) and (c))
  • Payroll records for all construction trade employees working in the Standard Metropolitan Statistical Area(s) (SMSA) or in the Economic Area(s) (EA) during the specified review period, submitted by project, including each employee’s name or ID, gender, race/ethnicity, hire date, trade(s), total hours worked in each trade, overtime hours worked in each trade, wage rate(s) for each trade, apprenticeship status, and employment type (e.g., full-time, part-time, temporary, contract, per diem, day labor)
  • Examples of job advertisements and postings
  • Documentation of accommodation requests received and their resolution, if any
  • A copy of the current Section 503 AAP
  • A copy of the current VEVRAA AAP
  • Documentation of the data collection analysis
  • Documentation of the most recently adopted VEVRAA hiring benchmark

For federal construction contractors impacted by these potential changes, now may be a good time to start re-evaluating your compliance and record-keeping procedures related to AAPs. While OFCCP anticipates that the new compliance check approach will reduce the burden on contractors, contractors will likely need some time to adjust to the new protocols, especially as it pertains to records described above and related programs. Also, because OFCCP anticipates being able to conduct more compliance checks (approximately 500 annually), contractors may be subject to oversight more often, and it may make sense to update or modify existing AAP compliance regimes to accommodate the changing landscape.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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