Now is a good time to make sure that you are complying with the 16 Affirmative Action steps set forth in Executive Order 11246.
This Executive Order prohibits discrimination against any employee or job applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, or national origin.
These non-discriminations obligations apply to contractors and subcontractors that hold any federal or federally assisted construction contract in excess of $10,000. The obligations include notifying the government when you are awarded such a contract, monitoring for intentional discrimination or employment practices which adversely impact members of a protected group which are not job related, publication of your policies and record keeping requirements. Violations of the laws can result in lawsuits and in financial penalties.
Jenny Yang became the head of the Office of Federal Contractor Compliance in January 2021. Ms. Yang is an accomplished attorney and had served as the Chair, Vice-Chair and Commissioner of the U.S. Equal Employment Opportunity Commission (EEOC) under the Obama Administration. Upon being appointed she states she was “excited to return to the government to advance OFCCP’s powerful mission to ensure equal opportunity and promote meaningful affirmative action.” 2/11/2021, Message from Jenny Yang, OFCCP website.
Her statements signal a likely return to an enforcement mentality where the OFCCP reviews will last longer, dig deeper and result in larger settlements or fines against contractors. Considering her background, her enforcement focus will be on pay equity, compensation discrimination in fringe benefits (paid leave), and systemic/institutional bias in hiring. It seems to ring true as the agency recently announced it plans to hire an additional 180 employees.
In addition, on September 1, 2021, 400 federal contractors, federally assisted contractors and subcontractors received a courtesy notice that OFCCP is coming to conduct a compliance evaluation in 45 days.
However, all is not lost and you would be well-advised to prepare.
First, OFCCP has undertaken a couple of steps that can assist contractors in preparing for the compliance evaluations and has encourage contractors to reach out for assistance in preparing for the audit, https://www.dol.gov/agencies/ofccp/compliance-assistance. OFCCP has created a Contractor Compliance Institute which is a series of short videos where a contractor can “acquire the skills” to comply with the regulations.
Second, OFCCP has revised its Technical Assistance Guide for Contractors (Guide) which has a list of recommmeded actions a contractor can take to comply. Here is a link to the Guide, https://www.dol.gov/agencies/ofccp/compliance-assistance. Previous publications by OFCCP listed each of the 16 steps in the order that it appears in the Federal regulation. However, the new Guidance groups the steps according to “critical personnel activities,” which make it easier to implement within your organization. The five areas are:
Equal Employment Opportunity Policy and Implementation
The Guide has practical suggestions of best business practices to demonstrate compliance. I encourage you to use this Guide to evaluate your own process and compliance against the best business practices set forth in the Guide.
OFCCP suggests that one of the best ways of preventing or uncovering discrimination is to regularly review applicant data and hires to see if any one group is being disproportionately screened out. You should be keeping an applicant log and OFCCP has revised its procedures to reflect that many employers are now keeping this data electronically and receiving employment application via the internet. Employment criteria should be job-related and apply equally to all applicants.
Similarly, wage compensation policies should be periodically reviewed to determine whether all employees have access to opportunities affecting compensation, such as, promotion, work assignments, overtime, etc.
A lot of headaches can be avoided by preparing in advance for the audit and collecting and retaining the appropriate documentation. Check out the Guide as it is an invaluable resource in preparing for any audit. Remember, it is not enough to do it, you must also be able to prove it.
If you have any questions or suggestions for future topics, please reach out to Lorraine D’Angelo, firstname.lastname@example.org or call (914) 548-6369.