OFCCP Blog 2

As mentioned in a previous blog, OFCCP’s Contractor Portal, we are kicking off a blog series related to OFCCP and Affirmative Action requirements for contractors of all sizes. We begin this series by laying the groundwork of who (or what) OFCCP is and what affirmative action is. This series will focus on supply and service contractors; however, construction contractors may also find it helpful. Regardless of the type of contractor, our HR Team is available to assist with all of your OFCCP compliance and Affirmative Action Program (AAP) needs.

Who (or what) is OFCCP?

The stated mission of the Office of Federal Contract Compliance Programs (OFCCP), which is under the umbrella of the Department of Labor, is to protect workers, promote diversity and enforce the law. The OFCCP is responsible for ensuring that federal government contractors comply with equal employment opportunity laws, specifically Executive Order 11246, Section 503 of the Rehabilitation Act of 1973 and the Vietnam Era Veterans Readjustment Assistance Act of 1974.

The chart below provides an overview of the laws that the OFCCP administers and enforces, and the thresholds at which they become applicable to federal contractors. For reference, the applicable FAR clauses are also included. Note that the requirements differ based on the type of contract (Supplies and Services or Construction). This series will focus on Supply and Service Contractors; however, our HR Consulting team is available to assist with the requirements of Construction Contractors as well.

OFCCP’s Equal Employment Legal Authorities
& Jurisdictional Thresholds

Executive Order 11246, as amended

Take affirmative action and prohibits employment discrimination based on race, color, religion, sex, sexual orientation, gender identity, and national origin.

Supply and Service
Contractors

Basic Requirements:
Any number of employees with contracts more than $10,000

Enhanced Requirements (AA Program):
50 or more employees with a contract of $50,000 or more

Construction
Contractors

Basic Requirements & 16 Specifications:
Any number of employees with contracts more than $10,000

Applicable FAR Clauses:

· 52.222-21 Prohibition of Segregated Facilities

· 52.222-22 Previous Contracts and Compliance Reports (FEB 1999)

· 52.222-24 Preaward On-Site Equal Opportunity Compliance Evaluation (FEB 1999)

· 52.222-25 Affirmative Action Compliance (APR 1984)

· 52.222-26 Equal Opportunity

· 52.222-29 Notification of Visa Denial (APR 2015)

· 52.222-40 Notification of Employee Rights Under the National Labor Relations Act

Section 503 of the Rehabilitation Act of 1973, as amended

Take affirmative action and prohibits employment discrimination based on disability.

Supply and Service
Contractors

Basic Requirements:
Any number of employees with contracts more than $15,000

Enhanced Requirements (AA Program):
50 or more employees and a contract of $50,000 or more

Construction
Contractors

Basic Requirements:
Any number of employees with a contract of more than $15,000
(Does not apply to federally assisted construction contractors)

Enhanced Requirements (AA Program):
50 or more employees with a contract of $50,000 or more
(Does not apply to federally assisted construction contractors)

Applicable FAR Clause:
· 52.222-36 Affirmative Action for Workers with Disabilities

Vietnam Era Veterans’ Readjustment Act of 1974, as amended (VEVRAA)
Take affirmative action and prohibits employment discrimination based on protected veteran status.

Supply and Service
Contractors

Basic Requirements:
Any number of employees with a contract of $150,000 or more

Enhanced Requirements (AA Program):
50 or more employees and a contract of $150,000 or more

Construction
Contractors

Basic Requirements:
Any number of employees with a contract of $150,000 or more
(Does not apply to federally assisted construction contractors)

Enhanced Requirements (AA Program):
50 or more employees and a contract of $150,000 or more
(Does not apply to federally assisted construction contractors)

Applicable FAR Clauses:
· 52.222-35 Equal Opportunity for Veterans
· 52.222-37 Employment Reports on Veterans
· 52.222-38 Compliance with Veterans’ Employment Reporting Requirements (FEB 2016)

What is Affirmative Action?

Like other employers, government contractors are responsible for complying with equal employment opportunity laws. This, of course, involves ensuring that applicants and employees are treated equally and without discrimination in all aspects of employment (hiring, promotion, compensation, training, etc.). Federal government contractors have the added responsibility of affirmative action, or encouraging and taking proactive steps toward equal employment and nondiscrimination. Merriam-Webster defines affirmative action as “an active effort to improve employment or educational opportunities for members of minority groups and for women.” OFCCP defines affirmative action as “the obligation on the part of the contractor to take action to ensure that applicants are employed, and employees are treated during employment, without regard to their race, color, religion, sex, sexual orientation, gender identity, national origin, disability, or status as a protected veteran.” The goal is to be intentional on casting a wide net, ensuring equal opportunities are provided to all and ultimately focusing on merit.

An Affirmative Action Program, or Plan (AAP), is a written document which clearly defines the actions the contractor has taken and will take toward these equal employment and affirmative action efforts. The requirements of the AAP go beyond simply producing this written document. The various analyses required within the plan need to be evaluated and provide data which may be helpful in identifying opportunities for improvement or potential issues. We will dig into these plans and the required elements in a future blog within this series.

Why does affirmative action matter?

Well, it’s the law and there’s certainly significant repercussions in failing to comply. For example, see OFCCP By the Numbers, where you will find that the OFCCP obtained over $211 million dollars of relief for employees and applicants who they found to have been discriminated against between 2011-2021. In addition to the financial considerations, failure to comply with these requirements often leads to significant time and resources required of your staff in responding to OFCCP investigations, poor public relations and the potential for loss of contract renewal and debarment.

Beyond the legal aspects, compliance makes good business sense. We’ve certainly learned that a diverse and inclusive environment provides for increased innovation, a stronger culture and an atmosphere of trust, all of which encourage retention and increases productivity and revenue.

What’s next in this series?

We hope you noted from the chart above that most all contractors have at least some responsibilities toward Affirmative Action, even those with fewer than 50 employees. In the next segment of our series, we will provide an overview for Service and Supply Contractors of these Basic Requirements (for those with fewer than 50 employees) and the Enhanced Requirements (for those with greater than 50 employees).

Learn More About Our  Human Resources Consulting Services

Written by Sheri Buchanan

Sheri Buchanan Ms. Buchanan is Director – Human Resources Consulting with Redstone Government Consulting, Inc. She provides human resources consulting services to our customers on a broad range of issues to include establishing and implementing policies and practices, development of job analysis and descriptions, compensation planning and analysis for reasonableness assessments, and compliance with the various requirements of Department of Labor and, of great importance to government contractors, the Office of Federal Contract Compliance Programs. Prior to joining Redstone Government Consulting, Inc., Sheri served in various roles in the Human Resources arena. While employed by a mid-size government contractor she assisted with database development, recruiting, Affirmative Action Planning and assisted with contract proposals. Sheri later became an Employment Specialist with one of the largest employers in Huntsville where she assisted and led managers in the interpretation and documentation of the progressive disciplinary process, to include authorization of employee terminations; conducted employee investigations, allegations of discrimination, sexual harassment, wrongful discharge and employee disputes; conducted unemployment hearings; conducted new employee orientation; developed and presented management training; administered facility compensation plan; monitored staffing budgets and wrote job descriptions and handbook revisions. Sheri received a Bachelor of Science in Business Administration in Human Resource Management from the University of Alabama Huntsville in 1995.

About Redstone GCI

Redstone Government Consultants are a team of the most senior industry veterans and the brightest new talent in the industry. Many have held senior government positions including leadership roles in the DCAA. Our new talents bring significant accounting and software experience along with fresh perspectives, inspiration and energy to our team. Through our leadership and combined experience, we provide a unique perspective, bringing both government and contractor proficiencies to bear and ensuring rock-solid government compliance for our clients.

Topics: Defense Contractors, Government Compliance Training, Human Resources, Office of Federal Contract Compliance Programs, Affirmative Action