Affirmative Action Plans

AAP Preparation Services

WCI has partnered with Jackson Lewis PC to provide affirmative action plan development services. As a national employment law firm with in-depth experience in this specialty area, there are many advantages to having your AAP completed by their attorneys.

• Experience through a diverse nationwide team that prepares over 4,500 plans annually
• Legal representation for OFCCP audits and discrimination allegations
• Strategic design to present a company's workforce in the most favorable light
• Compliance with enforcement trends, agency directives, and applicable case law that minimizes risk
• Analyses for classification, availability, utilization, impact, placement, etc.
• Attorney-client privilege protections not available from non-attorney AAP consultants
• WCI members can request a complimentary, no-obligation, one-hour AAP consult (use button)

Office of Federal Contract Compliance Programs

The Contractor Portal is a new OFCCP platform where covered federal contractors and subcontractors (“contractors”) must certify whether they are meeting their requirement to develop and maintain annual AAPs. Scheduled contractors will also be able to use the portal to upload their AAP(s) during a compliance evaluation.

Access the Contractor Portal frequently asked questions here.

Affirmative Action Planning Basics - Video Seminar

As recipients of American tax dollars, companies that do business with the federal government incur myriad obligations under contracting regulations. One such set of obligations stems from the Affirmative Action Regulations. Under those regulations, federal contractors and subcontractors must develop affirmative action plans (AAPs) annually, submit to periodic audits by OFCCP, and comply with a long list of technical requirements. Our strategic partners at Jackson Lewis presented the following seminar in November 2020 to explain these daunting regulations and provide practical advice for contractor compliance.

General Guide to AAP Requirements

Under Executive Order (EO) 11246, employers with a covered supply or service federal contract or subcontract of at least $50,000 must engage in affirmative action efforts to increase the workforce representation of women and minorities.

Covered employers with at least 50 employees must prepare annually a written affirmative action plan (AAP) for each of their “establishments” (physical work locations) with at least 50 employees. Additionally, such employers must follow non-discrimination and related provisions, as well as comply with a host of recordkeeping, data collection, and technical obligations. Chief among the data requirements is the obligation to track and maintain applicant data for analyses. AAPs require a number of annual workforce and personnel activity analyses, including a Workforce Analysis, Job Group Analysis, Utilization Analysis, and Placement Goals. In addition, covered contractors must conduct annual analyses of their applicant flow, hiring, promotion, termination, and compensation practices. The primary source of data for these AAP analyses is race and gender data collected through pre- and post-offer applicant and employee invitations to self-identify. Other technical obligations include drafting, implementing, and disseminating a prescribed equal employment opportunity (EEO)/Policy Statement, ensuring that all job postings contain an “EEO Tag Line,” annually providing all vendors a notice of the employer’s federal contractor status, incorporating an “Equal Opportunity Clause” in each of the employer’s covered subcontracts, notifying all unions of the employer’s federal contractor status (if applicable), and posting a number of notices on the employer’s careers website, including an applicant-accessibility statement.

Construction contractors with a federal construction contract or federally assisted construction contract, or subcontract, of at least $10,000 must follow the non-discrimination and related provi¬sions of EO 11246. While they need not have a written AAP, they must implement an AAP that includes 16 specified requirements that are substantially similar to the obligations for supply and service contractors. For construction contractors, there is no employee-count threshold.

Federal contractors and subcontractors with a single government contract or subcontract of at least $150,000 must follow the non-discrimination and related provisions concerning “protected veterans” covered under the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA). If the contractor also has at least 50 employees, it must annually prepare a written AAP for each establishment with at least 50 employees. As with EO 11246, VEVRAA imposes a number of technical obligations, including the listing of job openings with the state workforce agency in the state where the opening occurs. Under VEVRAA, covered employers must engage in documented outreach efforts to attract qualified protected veterans in a good faith effort to annually attain a veteran hiring benchmark of 5.9%.

Employers with at least 50 employees and a single federal contract or subcontract of at least $50,000 must comply with non-discrimination and affirmative action provisions of Section 503 of the Vocational Rehabilitation Act, including the requirement to annually prepare a written AAP for each establishment with at least 50 employees. Section 503 also imposes a number of technical obligations and restrictions similar to those of the Americans with Disabilities Act. The primary objective of Section 503 is documented outreach efforts to attract qualified individuals with disabilities such that the employer attains a utilization goal for disabled individuals in each of its AAP job groups of 7%.

As with race and gender data under EO 11246, VEVRAA and Section 503 require covered employers to invite pre- and post-offer applicants and employees to self-identify for status as a protected veteran or disabled individual. OFCCP prescribes a specific form for inviting applicants and employees to self-identify for disabled status.

These requirements apply not only to the contractor’s employees working directly on a federal contract, but generally to their entire workforce, including locations where no federal contract work is performed. Depending on a number of factors, including the extent of common ownership and control, AAP obligations also may extend to other related companies.

EO 13672 prohibits discrimination based on sexual orientation and gender identity. It also requires: (1) inclusion of “sexual orientation” and “gender identity” in EEO Taglines where protected statuses are listed (rather than abbreviated Taglines), and (2) posting of updated “EEO is the Law” posters.

SOURCE: Jackson Lewis PC