The Office of Federal Contract Compliance Programs (OFCCP)

The OFCCP is charged with ensuring organizations with Federal government contracts or subcontracts comply with regulations. OFCCP regulations can also be found in the Federal Contracts Manual, at www.dol.gov.


Many employers believe that since they don't have a direct contract with the federal government they are not required to have a written Affirmative Action Plan (AAP) nor do they have to be OFCCP Compliant. However, they may be surprised to learn who the federal government considers a contractor and as a result, who must be OFCCP Compliant. OFCCP Definitions: :

To be prepared for an audit, contractors should have systems and guidelines in place that address the following:

Defining an Applicant

Employers must differentiate applicants from job seekers per the published definition of an applicant. First, an employer must have a job opening and make the job seeker aware of the opening. Then, to be considered an applicant under the OFCCP definition, a person must meet the following criteria. :

  1. The job seeker must express interest in the available job opening
  2. The contractor considers the individual for employment in a particular position.
  3. The job seeker becomes an applicant if the job seeker meets the minimum requirements for the job.
  4. The job seeker, at no point in the contractor's selection process (prior to receiving an offer of employment from the contractor) removes him/her self from further consideration, or otherwise indicates that he or she is no longer interested in the position.

To avoid having to keep records for each type of applicant, a contractor should put systems in place to differentiate an applicant from a jobseeker according to this definition. Based on the four criteria, employers subject to OFCCP compliance will need to develop or utilize systems that will allow them to solicit race and gender information - EEO data - for reporting the gender and racial makeup of the applicant pool. In addition, the OFCCP specifies record- keeping requirements for employers using the Internet or related electronic data technologies for recruiting and hiring.

OFCCP Applicant Log

The OFCCP also requires that an applicant log be maintained for each job opening and includes the following:

Affirmative Action Plans (AAP)

An Affirmative Action Plan is a management tool designed to ensure equal employment opportunities. They are required for each location, or employer, with 50 or more employees and a government contract(s) of $50,000 or more, or for an entity that employs 50 or more people, but does not have a signed contract, instead they sell, rent, or leave more than $50,000 worth of goods or services to a contractor for the performance of their contract with the government or government agency. AAP’s contain a diagnostic component which includes a number of quantitative analysis designed to evaluate the composition of the workforce of the contractor and compare it to the composition of the relevant labor pools.

Additionally, an AAP examines an employer’s hiring decisions and compensation systems to determine the impact those systems have on women and minorities. It includes policies, practices, and procedures that the employer utilizes to ensure all qualified applicants and employees are receiving equal opportunity for recruitment, selection, advancement or any other aspect associated with employment.

Affirmative Action Plan
Includes
Analysis
Requirements
  • Employee data from a specific point in time
  • Workforce Analysis
  • Job Group Analysis
  • Availability Analysis
  • Incumbency compared to Availability
  • Placement goals
  • Prior year goal attained
  • Hires/Offers vs. Applicants
  • Promotions vs. Persons considered
  • Terminations vs. Persons considered
  • Involuntary Terminations vs. Persons considered
  • Retaining current and previous year plans
  • Information 2 years after last employment decision (applicants, hires, promotions, terminations)
  • Preserve records for duration of employment for investigation/audit.

To view a sample Affirmative Action Plan, visit http://www.dol.gov/ofccp/regs/compliance/pdf/sampleaap.pdf

The Vietnam Era Veterans' Readjustment Assistance Act (VEVRAA)

This act requires Federal government contractors and subcontractors who have contracts of $25,000 or more to provide equal opportunity and affirmative action to employ, and advance in employment, specific categories of veterans protected by the act and prohibits discrimination against such veterans. In addition, VEVRAA requires contractors and subcontractors to list their employment openings on the appropriate job site. VEVRAA also requires federal contractors and subcontractors to compile and submit, annually, a report on the number of current employees who are covered veterans.

All personnel or employment records made or kept by the contractor including:
  • Requests for reasonable accommodation
  • Results of any physical examination
  • Job descriptions
  • Job postings
  • Records of job offers
  • Applications/resumes
  • Interview notes, tests, and test results
  • Written employment policies and procedures
Two years from the date of making the personnel record or action, whichever occurs later**
  • Assessment of external outreach and recruiting efforts on an annual basis
  • Data collection analysis showing:
    • number of applicants who self-identified as protected veterans
    • total number of job openings and jobs filled
    • total number of applicant for all jobs
    • number of protected veterans hired
  • total number of applicants hired
Three years
VETS100/VETS100A reports
Two years after filing

**Contractors with fewer than 150 employees, or who do not have a government contract of at least $150,000 only need to keep records for one year.

Vets 100 or 100A reports

Contractors with contracts of $ 25,000.00 or more entered into or modified prior to December 1, 2003 must file the VETS 100 report annually. For contracts entered into or modified after December 1, 2003 and valued at $ 100,000.00 or more, contractors must file the VETS 100A report annually.

Veteran Categories
VETS100
VETS100A
  • Special Disabled Veterans
  • Vietnam Era Veterans
  • Recently separated veterans
  • Pre-JVA veterans
  • Active Duty or Wartime Campaign Badge Veterans
  • Disabled Veterans
  • Active Duty or Wartime Campaign Badge Veterans
  • Recently Separated Veterans
  • Pre-JVA Veterans
  • Armed Forces Service Medal Veterans

Section 503 of the Rehabilitation Act of 1973

Section 503 prohibits discrimination and requires employers with federal contracts or subcontracts that exceed $10,000 to take affirmative action to hire, retain, and promote qualified individuals with disabilities. All covered contractors and subcontractors must also include specific equal opportunity clause in each of their nonexempt contracts and subcontracts.

All personnel or employment records made or kept by the contractor including:
  • Requests for reasonable accommodation
  • Results of any physical examination
  • Job descriptions
  • Job postings
  • Records of job offers
  • Applications/resumes
  • Interview notes, tests, and test results
  • Written employment policies and procedures
Two years from the date of making the personnel record or action, whichever occurs later**
  • Assessment of external outreach and recruiting efforts
  • Data collection analysis showing:
    • Number of applicants who self-identified as individuals with disabilities
    • Total number of job openings and jobs filled
    • Total number of applicant for all jobs
    • Number of applicant with disabilities hired
    • Total number of applicants hired
Three years

**Contractors with fewer than 150 employees, or who do not have a government contract of at least $150,000 only need to keep records for one year.

Requirements for Contractors and Subcontractors

There are two rule changes - one for veterans and one for individuals with disabilities. The proposed rules establish hiring goals for both veterans and individuals with disabilities. Details of the changes may be found here. Key elements of the rule changes are:

  1. Establishes a national disability hiring goal of 7% - Contractors must establish a goal of 7% of their workforce within each job category as qualified disabled.
  2. Employers must now develop a veteran availability "benchmark" each year, using aggregate national data published by OFCCP each year, or a more customized availability benchmark based on state-specific data and other factors. The national benchmark is currently at 8%.
  3. Contractors must provide evidence of outreach efforts specific to the recruitment of veterans and individuals with disabilities.
  4. New disability regulations will use the broader definition of disabilities as contained within ADA Amendment Act.
  5. Contractors must allow applicants to self-identify as veterans and disabled prior to job offer.
  6. Much more stringent data collection and reporting requirements to ensure that employers are making legitimate efforts to reach the goals. "Good faith" efforts are no longer sufficient.
  7. Much greater efforts at reasonable accommodation including a written procedure for reasonable accommodation in personnel processes such as accommodation in the application process.
  8. Effective date is March 24, 2014. However, contractors with Affirmative Action Plans in effect at the effective date will have until the anniversary of their Affirmative Action Plan to achieve compliance.

For more information, the OFCCP has established a FAQ:
http://www.dol.gov/ofccp/regs/compliance/faqs/Section503_NPRM_faq.htm