OFCCP Requiring Contractors to Use Latest Census Data for AAPs

Bracewell LLP

On May 15, 2013, the Office of Federal Contract Compliance Programs (OFCCP) posted a Notice on its website informing covered federal contractors that they will be required to use the 2006-2010 EEO Tabulation, released by the U.S. Census Bureau in November 2012, in preparing affirmative action plans (AAPs) that commence on or after January 1, 2014. The 2006-2010 EEO Tabulation replaces the Census 2000 Special EEO File that has been used by OFCCP and covered federal contractors since January 2005. The entire 2006-2010 EEO Tabulation is available here. The specific reports by detailed occupations typically utilized by federal contractors can be found at the "EEO Occupation Code" button here.

OFCCP Requirements for AAPs
Under OFCCP regulations implementing Executive Order 11246, federal supply and service contractors with 50 or more employees and a contract worth more than $50,000 are required to prepare and maintain AAPs to ensure that they are meeting their equal employment opportunity obligations.  For purposes of establishing goals, federal contractors are required to determine the availability of qualified women and minorities by calculating both internal availability ("promotables" within the contractor’s workforce) and external availability.  41 C.F.R. § 60-2.14(a).  In calculating the external factor in the availability estimates, OFCCP requires contractors "to use the most current and discrete statistical information available," which includes "census data, data from local job service offices, and data from colleges or other training institutions."  41 C.F.R. § 60-2.14(d). 

2006-2010 EEO Tabulation
The new EEO Tabulation contains information on 488 occupations and is similar to the Special EEO File created after the 2000 decennial census and provides data on the U.S. labor force by sex, race, and ethnicity.  The 2006-2010 EEO Tabulation contains 107 tables and is searchable by geographic location, occupation, and other variables.  The most common reports utilized for the preparation of the external factor of the availability analysis are known as the "2r" reports. 

The detailed occupational categories are based on the new 2010 Standard Occupational Classification (SOC).  A "crosswalk" between Census 2000 occupation categories used in the Census 2000 Special EEO File tabulation and the 2006-2010 EEO Tabulation occupation categories is available here.  Most occupational codes simply add a "0" before the prior code (e.g., CEOs – the prior code was 001; the current code is 0001)

There are several other differences between the 2006-2010 EEO Tabulation and the Census 2000 Special EEO File that will affect the preparation of AAPs for 2014.  For example, according to the Census Bureau in response to frequently asked questions about the 2006-2010 EEO Tabulation, this is the first time the file is produced using American Community Survey (ACS) data.  Data users can compare ACS 1-year, 3-year or 5-year estimates with Census 2000 data.  Differences in the universe, question wording, residence rules, reference periods, and the way in which data are tabulated can impact comparability with Census 2000.  Also, this is the first time the tabulation provides pre-calculated margins of error for every estimate and percentage.  ACS data is collected from a sample of the population in the United States and Puerto Rico – rather than from the whole population.  All ACS data are survey estimates, which is why a margin of error is published. 

In addition, the tabulation provides data by citizenship and unemployment status for the first time.  The U.S. total and state geographies are available for worksite tables and the tabulation provides data on Puerto Rico as part of the geographic tabulations

Use of the 2006-2010 EEO Tabulation Not Required Until 2014
OFCCP has recognized that some federal contractors have already prepared their AAPs for 2013 and that it will take time for many contractors to convert or upgrade software systems to incorporate the data in the 2006-2010 EEO Tabulation.  As a result, OFCCP is allowing contractors to continue using the Census 2000 Special EEO File in the development of AAPs commencing in 2013.  However, the 2006-2010 EEO Tabulation must be used for all AAPs commencing on or after January 1, 2014.  Likewise, the OFCCP will begin utilizing the 2006-2010 EEO Tabulation in 2014 to evaluate contractor’s compliance with Executive Order 11246.

Federal contractors should begin taking steps now to convert or upgrade their software systems to ensure that their 2014 AAPs are compliant with OFCCP regulations and are based on current data.

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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