Here’s the deeper dive.
The Office of Federal Contract Compliance Programs recently published its Technical Assistance Guide for construction contractors.
According to the OFCCP, the 148-page Guide acts “to serve as a valuable self-assessment tool for contractors to review the practices they have in place to eliminate discrimination and achieve their equal employment opportunity goals.” The Guide is largely a review of existing standards and regulations, but it also includes suggested best practices and concrete guidance specific to construction contractors. The complete document is available with other guidance on the OFCCP’s Technical Assistance landing page. A brief summary follows.
Overview of laws
The Guide begins with an overview of the three main laws enforced by the OFCCP: Executive Order 11246, Section 503 of the Rehabilitation Act of 1973, and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974. Together, these laws provide that construction contractors must follow two general rules to comply with EEO obligations:
- Do not discriminate against applicants or employees based on race, color, gender, religion, national origin, sexual orientation, gender identity, disability, or protected veteran status.
- Take affirmative action to ensure equal employment opportunity without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin; employ and advance in employment qualified individuals with disabilities and protected veterans.
Affirmative action and best practices
The Guide delves into specific requirements of the three laws listed above. These requirements should not come as a surprise to experienced construction contractors, but the Guide does provide some helpful insights and reminders.
Executive Order 11246
Although construction contractors are not required to develop written Affirmative Action Plans under Executive Order 11246, they are expected to make good-faith efforts to meet the participation goals set by the OFCCP by taking 16 affirmative action steps, regardless of the number of individuals employed by the contractor. The 16 steps are outlined in the regulations, but the Guide groups them into the following categories: recruitment practices, training, equal employment opportunity policy and implementation, personnel operations, and contracting activity.
The Guide also provides examples that exemplify best practices, such as the following:
- Contractors must encourage female and minority employees to recruit female and minority candidates. "Where reasonable," contractors should provide employment in all areas of its workforce to minority and female youth during after-school, summer, and vacation times. Records of all such recruitment efforts should be maintained by contractors.
- Contractors should discuss their EEO policies and affirmative action obligations with onsite supervisors before construction work begins at any job site. Reminding superintendents and general forepersons of the contractors’ obligations will help keep the information fresh and easier to implement.
- To ensure a harassment-free workplace, contractors should consider assigning more than one woman to each construction project, while keeping a record of the assignments.
In addition, the OFCCP provides guidance on measuring progress toward satisfying the participation goals for females and minorities in construction trades. In this example, the goal for minorities is 10 percent of hours worked in the particular geographic area.
The contractor measures its progress toward meeting the . . . [hours worked] goal [for minorities] by dividing the hours worked by minorities in each trade by the total number of hours worked in the trade. For laborers, the contractor met the goal because minorities worked 150 of 200 total hours or 75%. For electricians, the contractor met the goal because minorities worked 10 of 50 total hours or 20%. For carpenters, the contractor did not meet the goal because minorities worked 10 of 150 total hours or 6.7%.
Section 503 and VEVRAA
Unlike Executive Order 11246, construction contractors covered by Section 503 and VEVRAA are required to develop written affirmative action plans. The Guide offers some specific tips for AAP development. For example, the regulations require contractors to develop an AAP for each of the contractor’s establishments, and the Guide outlines two ways construction contractors may prepare and maintain AAPs while remaining in compliance:
- Company-wide, as long as the AAP can be disaggregated by trade and geographical area for other reporting requirements.
- By geographical area, provided that employment records are collected at the project level by trade and aggregated for the geographical area.
The Guide also provides notice regarding what construction contractors may be requested to produce during an OFCCP compliance evaluation. Particular areas of interest include the following:
- Audit of affirmative action steps and personnel operations
- External and internal dissemination of policy
- Community relations
- Validation of employment tests
- Recruitment efforts
- Assessment of personnel practices
- Training programs
- Compensation disparities
- Discrimination and harassment policies
The Guide contains multiple appendices with helpful tools, including sample notices to employees, EEO posters, required language to include in covered subcontracts, minority percentage goals, and more.
There is more in the Guide than can be summarized here. If you have questions about the information included in the Guide, please contact a member of our Affirmative Action/OFCCP Compliance team.
Our Affirmative Action Alert blog focuses on the latest news and topics affecting federal contractors and subcontractors and their compliance with affirmative action and other employment-related laws and regulations. With breaking news, quick updates, and headlines on the Office of Federal Contract Compliance Programs and affirmative action issues, this blog is a great resource for in-house counsel, HR managers, and other compliance professionals. Our blog is a companion to Constangy’s Affirmative Action newsletters, which address significant legislative, regulatory, and administrative proposals and changes. Subscribe to both to stay current on these important topics!
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