U.S. Dept. of Labor to Check Contractor Affirmative Action Certifications

Government regulations can make contractors feels like they are sometimes navigating a complicated maze.

August 21, 2018

WASHINGTON D.C. — The U.S. Dept. of Labor will audit federal contractors who have not certified affirmative action compliance with the government, per a recent directive issued by an agency acting director.

Craig Leen, acting director, Office of Federal Contract Compliance Programs (OFCCP), issued the directive on Aug. 10

As previously reported in Roofing Contractor, every company that contracts or subcontracts with the federal government for more than $10,000 is required to avoid discriminating against employees based on sex, race, color, religion, national origin, disability or status as a protected veteran. Nearly one-quarter of American workers are employed by a company that does business with the federal government, according to the Labor Department, so a significant number of companies come under the jurisdiction of the OFCCP.

If companies with federal contracts or subcontracts are found to be non-compliant in regard to equal employment and affirmative action, they can face mandatory changes in their employment policies as well as bad publicity. In the worst-case scenario, they may even be barred from working with the government.

Previously, OFCCP audited facilities through a neutral, random selection process instead of focusing on contractors who have not checked the appropriate compliance box. That's set to change starting next year.

Per Leen’s directive “OFCCP is in the process of implementing a comprehensive initiative that seeks to ensure compliance with equal employment opportunity and anti-discrimination regulations. As part of this initiative, OFCCP intends for a portion of its future scheduling lists to include focused reviews as to each of the three authorities that OFCCP enforces: the (Executive Order 11246), (Section 503 of the Rehabilitation Act of 1973), and (Vietnam Era Veterans’ Readjustment Assistance Act of 1974).

The three laws essentially govern equal employment opportunities for persons employed by federal contractors. As Attorney Richard D. Alaniz previously wrote in a column for Roofing Contractor, these laws ban discrimination and require federal contractors and subcontractors to take affirmative action to ensure that all individuals have an equal opportunity for employment. These laws are:

Executive Order 11246. EO 11246 prohibits federal contractors and subcontractors and federally assisted construction contractors and subcontractors that generally have contracts that exceed $10,000 from discriminating in employment decisions on the basis of race, color, religion, sex or national origin. It also requires contractors to take affirmative action to ensure that equal opportunity is provided in every aspect of employment. Companies must also make good faith efforts to achieve the goals that the OFCCP sets for employing women and minorities in “all crafts and trades” in their area where the contracts are to be performed.
Section 503 of the Rehabilitation Act of 1973. Section 503 requires affirmative action for qualified individuals with disabilities for all federal contracts over $10,000. It also stipulates that contractors and subcontractors who hold contracts over $50,000 and that have 50 or more employees must develop and maintain a written affirmative action program.
The Vietnam Era Veterans Readjustment Assistance Act of 1974. This law requires affirmative action for all personnel practices regarding covered veterans on contracts of $100,000 or more. The law requires certain affirmative action steps for disabled veterans, Armed Forces service medal veterans, recently separated veterans, and other protected veterans who served during a war, a campaign, or an expedition for which a campaign badge was authorized. Covered contractors and subcontractors with 50 or more employees must develop and maintain a written affirmative action program.

“In the focused reviews anticipated by this Directive, OFCCP would go onsite and conduct a comprehensive review of the particular authority at issue,” the Aug. 10 directive states. “For example, in a Section 503 focused review, the compliance officer would review policies and practices of the contractor related solely to Section 503 compliance.

“The review would include interviews with managers responsible for equal employment opportunity and Section 503 compliance (such as the ADA coordinator) as well as employees affected by those policies. OFCCP would also seek to evaluate hiring and compensation data, as well as the handling of accommodation requests, to ensure that individuals with disabilities are not being discriminated against in employment. A similar approach would be used in a VEVRAA focused review to ensure compliance with equal employment opportunity and anti-discrimination obligations as to protected veterans. Finally, an E.O. focused review would ensure compliance with equal employment opportunity and anti-discrimination obligations as to all of the protections in the E.O.”

The directive can be found online at https://www.dol.gov/ofccp/regs/compliance/directives/Dir2018-04-ESQA508c.pdf