Frequently Asked Questions
Below are frequently asked questions related to affirmative action. Simply click the question to reveal the answer.
Who Must Comply With Affirmative Action Regulations?
Who must develop affirmative action programs?
As provided by 41 CFR § 60-1.40, each non-construction (supply and service) contractor or subcontractor with the federal government must develop and maintain a written affirmative action program for each of its establishments if it has 50 or more employees and:
(a) Has a contract of $50,000 or more; or
(b) Has government bills of lading that in any 12-month period total or can reasonably be expected to total $50,000 or more; or
(c) Serves as a depository of government funds in any amount; or
(d) Is a financial institution that is an issuing and paying agent for U.S. savings bonds and savings notes in any amount.
What is a government contractor/subcontractor?
Government contractors are those individuals or businesses that enter into contracts with the United States to provide goods or services. Government subcontractors are those individuals or businesses that enter into contracts with government contractors to provide goods or services necessary for the fulfillment of the primary contract with the government. Subcontractors, and not just first tier subcontractors, are considered government subcontractors and must comply with the regulations.
Do construction contractors have to develop affirmative action programs?
Construction contractors do have certain limited obligations related to affirmative action. However, these requirements are much less complex and burdensome than the obligations imposed upon supply and service contractors. Construction contractors should refer to 41 CFR § 60-4 for specific affirmative action requirements.
Do affiliated or subsidiary facilities of the Company not performing work related to the fulfillment of the government contract/subcontract have to comply with the regulations?
In most instances, yes. 41 CFR § 60-1.40 states government contractors “must develop and maintain a written affirmative action program for each of its establishments.” The OFCCP interprets this to mean all facilities of a company even if they do not perform work necessary for the fulfillment of the government contract. To exclude a particular facility, the Company must be able to demonstrate that a facility is a separate legal entity without, among other things, shared benefits, human resource functions, board members, and management.
We are a covered government contractor and are required to have an affirmative action program. However, we haven't prepared one or the one we have is several years old. What should we do if the OFCCP asks us for prior year affirmative action programs?
If you have maintained the necessary records for the prior year(s), it may be possible to prepare a written affirmative action program for the prior year(s) and submit this information to the OFCCP. However, it is not suggested that you make any misrepresentations or provide false information to the OFCCP at any time.
We are not aware of any government contracts or subcontracts held by our Company. What should we do if the OFCCP asks us for our affirmative action programs and supporting documentation?
In the event you receive a request for affirmative action programs and supporting documentation as part of an audit by the OFCCP, you should immediately conduct an internal review to confirm no government contracts or subcontracts are held by the Company. If the internal review confirms you do not have any contracts or subcontracts, you should write the OFCCP prior to the deadline specified in their request and inform the agency you are not a government contractor.
We have received a letter from the OFCCP instructing the Company to submit its affirmative action program with certain data for a desk audit within 30 days. Will the OFCCP grant an extension of time for those submissions?
Extensions are very rarely granted in these situations because the requested information should already have been compiled and prepared in accordance with the regulations. Additionally, it is not suggested an extension be requested except under very unusual circumstances as this may indicate to the OFCCP that the Company had not previously complied with the regulations.
What penalties can the OFCCP impose if we are not in compliance?
The OFCCP can levy severe and costly punishments against contractors and has several penalty options available to it to encourage compliance. The OFCCP has authority to cancel an existing contract held by the Company and to debar the contractor from all future government contracts. Substantial awards of back pay and other monetary penalties can also result if the OFCCP determines a contractor’s employment decisions adversely impact the protected groups. The OFCCP may also order a contractor to hire or promote particular individuals or groups of individuals. Violations can result in a Conciliation Agreement for a period of usually 2 years. While no monetary penalties are associated with Conciliation Agreements for solely technical violations, additional reporting requirements are established during the agreement period adding to the contractor’s burden of compliance.
Affirmative Action Program Development
When must affirmative action programs be developed?
Affirmative action programs must be developed within 120 days from the commencement of a government contract and must be updated annually. A government contractor may select any 12-month period as its affirmative action year and is not limited to a calendar or fiscal year basis.
My total workforce exceeds 50 employees, but I have some facilities with fewer than 50 employees. Do I have to prepare a separate affirmative action program for each facility?
As provided in 41 CFR § 60-2.1, each employee in the contractor’s workforce must be included in an affirmative action program. Each employee must be included in the affirmative action program of the establishment at which he or she works, except that employees who work at an establishment at which the contractor employs fewer than 50 employees may be included under any of the following three options:
(a) In an affirmative action program that covers just that establishment;
(b) In the affirmative action program that covers the location of the personnel function that supports the establishment; or
(c) In the affirmative action program that covers the location of the official to whom they report.
Are there any mandatory referral sources I must notify when I have job openings?
Yes. Government contractors are required to list many openings with “an appropriate employment delivery service system at which or through which labor exchange services, including employment, training, and placement services are offered.” This requirement can be met by posting jobs with your local employment service office of the state employment security agency where the opening occurs or by using an on-line service which will post openings with the appropriate state employment service office on the Company’s behalf. The following openings are exempt from this requirement:
(a) Openings for Officials & Managers within the Company;
(b) Openings that will be filled from within the Company; and
(c) Temporary positions lasting less than three days.
How do I handle reporting for employees who are physically present at one location but organizationally report to a different location?
Individuals physically located at one location but reporting to another location must be annotated in two reports – the Workforce Analysis and the Job Group Analysis. Both the location where the individual works and the location to which the individual reports must annotate the employee on these reports. However, only the location to which the individual reports should include the employee when making calculations for the adverse impact, utilization, etc.
Who is an applicant?
Companies Accepting Electronic Expressions Of Interest
For Companies accepting expressions of interest from job seekers electronically, the OFCCP’s final internet applicant rule, which became effective on February 6, 2006, sheds significant light on the age-old question “Who is an applicant?” by establishing four criteria a job seeker must meet before being considered an applicant. A job seeker must meet all four criteria of the “test” before the individual is logged as an applicant and given the opportunity to self-identify his or her gender, race and ethnicity. The “test” greatly increases a contractor’s ability to limit its applicant pool and reduce the record keeping burdens associated with applicant tracking.
The Internet Applicant “Test”
(a) The job seeker must submit an expression of interest in employment through the Internet or related electronic data technologies;
(b) The contractor must consider the job seeker for employment in a particular position;
(c) The job seeker’s expression of interest indicates that he or she possesses the basic qualifications for the position; and
(d) The job seeker does not remove himself or herself from further consideration or otherwise indicate that he or she is no longer interested in employment in the position prior to an offer of employment by the contractor.
Any individual the Company determines not to be an applicant does not need to be given the opportunity to voluntarily self-identify race, gender, veteran or disability status. However, any applications, resumes, etc. submitted by these individuals must be maintained in accordance with the record retention requirements discussed below.
Companies Not Accepting Electronic Expressions Of Interest
Companies currently not accepting electronic expressions of interest from job seekers should consider job seekers to be applicants if the following “tests” are passed.
The Traditional Applicant “Test”
(a) The job seeker must express an interest in a position for a specific employer. This expression of interest can be in writing or oral.
(b) The Company must have an open position. It is generally a good practice not to accept unsolicited applications for this reason.
(c) The job seeker must register his or her interest in a manner that conforms to the procedures established by the Company for receiving such expressions of interest. For example, the Company can decide to accept only on-line applications or require an actual application to be completed to be considered an applicant. Once these procedures are established, the Company should be careful not to make exceptions to these procedures or deviate from them under special circumstances without a formal change to the procedure.
(d) The Company must actually act upon the job seeker’s
qualifications and, based on these qualifications, either make a job offer or affirmatively decline to consider the job seeker further. Only when the Company has considered a job seeker for a position or evaluated his or her qualifications must the individual then be considered an applicant.
If the job seeker meets all four of the requirements under either the Internet Applicant “Test” or the Traditional Applicant “Test,” he or she should be considered an applicant and added to the Company’s applicant log. Any individual the Company determines not to be an applicant does not need to appear on the applicant tracking log. However, any applications, resumes, etc. submitted by these individuals must be maintained in accordance with the record retention requirements discussed below.
How do I obtain race, gender, veteran and disability status of potential applicants?
As provided by 41 CFR § 60-300.42 and 41 CFR § 60-741.42, government contractors must invite self-identification of race, gender, veteran and disability status prior to making a job offer. This invitation to self-identify must be voluntary, and specific language must be made part of the invitation. Please contact Precision Planning for a sample form to use for this purpose.
Recordkeeping and Retention
What types of employment activity records must I maintain to comply with the regulations and develop an affirmative action program?
In addition to the written affirmative action programs, government contractors must maintain and develop logs of employment activity related to applicants, hires, promotions, and terminations. Each of these logs must include, among other things, an individual’s race, gender, veteran status, disability status and job group. The use of these logs is integral to preparation of the written affirmative action programs. Documentation of the Company’s outreach or “good faith efforts” to diverse recruitment sources as well as the Company’s evaluation of its outreach effectiveness must also be maintained. For a complete discussion on records to be maintained by the Company, contact Precision Planning for assistance.
What records relevant to job seekers must I maintain?
Companies Accepting Electronic Expressions Of Interest
Although contractors must collect gender, race, ethnicity, veteran and disability status data only for individuals who qualify as Internet Applicants, they must also maintain records of expressions of interest made through the Internet or related electronic data technologies for all individuals “considered” by the contractor for a particular position. Contractors do not have the burden of retaining all expressions of interest made through the Internet or related technologies but only expressions of interest actually “considered.” The record retention standard in the context of a third-party resume database such as Monster.com requires contractors to retain resumes only of job seekers who met the basic qualifications for the particular position and were considered by the contractor and records identifying job seekers contacted regarding their interest in a particular position. Also, the contractor must retain a record of the position for which each search of the database was made, the substantive search criteria used, and the date of the search. With respect to internal resume databases, contractors must maintain a record of each resume added to the database, the date each resume was added to the database, the position for which each search of the database was made and, corresponding to each search, the substantive search criteria used and the date of the search.
To minimize what could be a significant record-keeping requirement, contractors should also consider updating or establishing clear protocols that limit the number of individuals considered for a position, for example by utilizing data management techniques or excluding consideration of individuals who do not follow the proper channels for application submission.
Companies Not Accepting Electronic Expressions Of Interest
For Companies not accepting expressions of interest from job seekers electronically, all expressions of interest must be maintained, unless the Company has a practice not to accept unsolicited expressions of interest. If the Company has such a practice, which it applies to all applicants, unsolicited expressions of interest need not be maintained.
How long do I have to retain records related to affirmative action?
As provided in 41 CFR § 60-1.12, any personnel or employment record made or kept by the contractor should be preserved by the contractor for a period of not less than two years from the date of the making of the record or the personnel action involved, whichever occurs later. However, if the contractor has fewer than 150 employees or does not have a government contract of at least $150,000, the minimum record retention period is one year from the date of the making of the record or the personnel action involved, whichever occurs later.
Records related to the Company’s outreach and recruitment of veterans and individuals with disabilities, the applicant and hire rates for both as well as the Company’s evaluation of its outreach efforts must be maintained for three years.
Where the contractor has received notice that a complaint of discrimination has been filed, that a compliance evaluation has been initiated, or that an enforcement action has been commenced, the contractor should preserve all personnel records relevant to the complaint, compliance evaluation or enforcement action until final disposition of the matter. The term “personnel records relevant to the complaint,” for example, would include personnel or employment records relating to the complainant and to all other employees holding positions similar to that held or sought by the complainant and application forms or test papers submitted by unsuccessful applicants and by all other candidates for the same position as that for which the complainant unsuccessfully applied. Where a compliance evaluation has been initiated, all personnel and employment records described above are relevant until OFCCP makes a final disposition of the evaluation.
Additionally, a government contractor must maintain its current AAP and documentation of good faith effort and must preserve its AAP and documentation of good faith effort for the two preceding AAP years unless it was not then covered by the AAP requirement.
Do I have to file a Vets-4212 report (formerly Vets-100A) and, if so, when must this be filed?
Any contractor or subcontractor who receives federal contracts or subcontracts in the amount of $100,000 or more must file a VETS-4212 (formerly Vets-100A) Report on an annual basis. The VETS-4212 Reports are due on or before September 30th of each year. A VETS-4212 Report form can be requested from the Department of Labor by calling 1-866-237-0275 or on-line at https://www.dol.gov/vets/vets4212.htm.
Do I have to file a Standard Form 100 (EEO-1 Report) and, if so, when must this be filed?
The Standard Form 100, commonly referred to as the EEO-1 Report, has historically been due on or before September 30th each year. However, a change to the regulations in 2016 increased the EEO-1 Report burden to include compensation information in pre-determined pay bands and moved the annual filing date to be on or before March 31st beginning in 2018. No EEO-1 Reports are to be filed in 2017. An EEO-1 Report must be filed by the following employers:
(a) All private employers that are: (1) subject to Title VII of the Civil Rights Act of 1964 (as amended by the Equal Employment Opportunity Act of 1972) with 100 or more employees EXCLUDING State and local governments, primary and secondary school systems, institutions of higher education, Indian tribes and tax-exempt private membership clubs other than labor organizations; OR (2) subject to Title VII that have fewer than 100 employees if the company is owned or affiliated with another company, or there is centralized ownership, control or management (such as central control of personnel policies and labor relations), so that the group legally constitutes a single enterprise, and the entire enterprise employs a total of 100 or more employees.
(b) All federal contractors (private employers), that: (1) are not exempt as provided by 41 CFR 60-1.5, and (2) have 50 or more employees and (a) are prime contractors or first-tier subcontractors and have a contract, subcontract, or purchase order amounting to $50,000 or more; or (b) serve as a depository of government funds in any amount, or (c) is a financial institution which is an issuing and paying agent for U.S. Savings Bonds and Notes.
Only those establishments located in the District of Columbia and the 50 states are required to submit Standard Form 100. No reports should be filed for establishments in Puerto Rico, the Virgin Islands, or other American Protectorates.
Complete instructions and a sample Standard Form 100 can be found on-line at https://www.eeoc.gov/employers/eeo1survey/index.cfm.
These links are to external pages and are provided as a convenience. They do not constitute an endorsement or an approval by Precision Planning.