The recently updated Construction Contractors Technical Assistance Guide (“TAG”) provides construction contractors substantial guidance in understanding their AAP obligations and how to fulfill those obligations. Helpfully, the TAG addresses both technical compliance as well as best practices to achieve the spirit of the relevant statutes.
The TAG is organized coherently and practically, beginning with an explanation of the Office of Federal Contractor Compliance’s (“OFCCP”) mission and the laws it has been charged to enforce: Executive Order 11246, Section 503 of the Rehabilitation Act of 1973 (“Section 503”), and Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (“VEVRAA”), and their enforcing regulations.
Executive Order 11246 Obligations
The TAG explains how a covered construction contractor must “take affirmative action” through postings, notices, and taglines in job postings, including:
- EEO and Pay Transparency Postings and Notices
- Notice to Unions
- Job Advertisement Taglines
- Listing Jobs with the Employment Service Delivery System
- Notification to OFCCP of Construction Contract Award
- Mandatory Notices in Bids and Contracting Documents
The TAG next details construction contractors’ mandatory record keeping obligations; specifically, what to keep, for whom records are required to be kept, the acceptable format of record keeping, and how long records must be maintained.
Unlike traditional affirmative action planning, construction contractors are not required to conduct a “utilization analysis” of females and minorities in its workforce. Instead, the TAG explains the regulatory requirement for construction contractors to develop participation goals for women and minorities. The TAG provides how the goals are established and directs contractors to resources to help assess adherence to the established goals. Notably, the Executive Order requires construction contractors to analyze the relevant onsite construction workforce by project, rather than by establishment.
Additionally, under Executive Order 11246, construction contractors are not required to prepare written affirmative action plans (“AAPs”); rather, they must adhere to sixteen affirmative action steps (and properly document the steps taken). In a helpful and logical way, the TAG organizes the steps outlined in the regulations according to the step’s place in the employment life cycle (not necessarily in the order they appear in the regulations): Recruitment Practices, Training, EEO Policy and Implementation, Personnel Operations, and Contracting Activity. These sixteen steps make up the bulk of the construction contractor’s affirmative action obligations.
Section 503 and VEVRAA Obligations
Not to be overlooked, and somewhat confusingly, construction contractors and supply & service contractors share the same obligations with respect to veterans and individuals with disabilities under VEVRAA and Section 503. Section 503 and VEVRAA regulations obligate all contractors to prepare written, establishment-based affirmative action plans with specific components. Thus, Section 503 and VEVRAA plans include both construction and non-construction workers. As such, construction contractors need to evaluate which establishment their onsite construction workforce should “roll up to” for these plans. Generally, an individual worker will roll up through his or her supervisor’s reporting chain to determine the appropriate establishment for Section 503 and VEVRAA AAP purposes.
The TAG provides fundamental information regarding construction contractors’ options in preparing their plans (for example, combining the Section 503 and VEVRAA plans into a single AAP or developing plans either by geographical area or company-wide), and proceeds to detail what the regulations require and what the OFCCP recommends regarding various written AAP components:
- EEO Policy
- Disseminate EEO Policy Internally and Externally
- Review of Personnel Processes
- Review of Mental and Physical Job Qualifications
- Reasonable Accommodations
- Develop and Implement Procedures to Prevent Harassment
- Undertake Outreach and Positive Requirement
- Design and Implement an Audit and Reporting System
- Designation of Responsibility
- Data Collection Analysis
The guide concludes with a reminder of contractors’ mandatory annual reporting obligations, and notably and perhaps most helpfully, how to prepare for a compliance evaluation. The TAG outlines the OFCCP’s purpose in conducting compliance evaluation, what compliance officers are likely to ask for, and how a construction contractor can proactively prepare an answer for such inquiries. Lastly, the TAG has robust appendices including glossaries of terms and abbreviations, sample mandatory notices and invitations to self-identify, frequently asked questions, and participation goals for women and minorities.
Now that the TAG has been issued it will be interesting whether we start to see more construction contractors appear on OFCCP’s CSAL lists going forward.