After two rounds of public comments, OFCCP implemented Directive No. 305 earlier this month with little fanfare. Directive 305 provides guidance to employers who desire to create affirmative action plans based on functional business units rather than by individual establishment – also known as FAAPs. Implementation of Direction 305 rescinds the previous FAAP directive, in effect since March of 2002, and has put an end to the year-long suspension on the Agency’s acceptance of requests to develop or renew agreements with employers who wish to develop FAAPs.
There are several changes to note in the new FAAP directive – the first of which is the lengths employers have to go to be approved to develop a FAAP. The new Directive has eliminated the provision providing for automatic approval if the OFCCP does not act upon a FAAP request within 120 days. Contractors are now required to receive written approval by the OFCCP Director before developing (or renewing) a FAAP.
Another addition to the process is the guarantee of at least one OFCCP FAAP audit during the 3 year duration of an approved FAAP in order to be eligible for renewal– a burden not imposed on employers who choose to prepare establishment based AAPs.
Given the significant changes put into place by Directive 305, it is imperative employers who prepare, or are thinking of preparing, functional affirmative action plans carefully review and evaluate OFCCP’s new process and its potential compliance implications.