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Tuesday, July 5, 2011

Functional Affirmative Action Program Process For Federal Contractors And Subcontractors Is Back


Alabama@ Work
By Tommy Eden, Attorney

On June 28 The U.S. Department of Labor's Office of Federal Contract Compliance Programs has released a new directive to outline the process by which federal supply and service contractors can apply for Functional Affirmative Action Program agreements, which can be viewed at http://www.dol.gov/ofccp/regs/compliance/directives/dir296.htm.

Under Executive Order 11246, any company with 50 or more employees and a federal contract of $50,000 or more is required to develop a written affirmative action program for each of its establishments. An AAP helps contractors identify and analyze potential disparities related to the employment of women and minorities.

Where disparities exist, contractors can use AAPs to articulate specific procedures they will follow and good faith efforts they will make to provide equal employment opportunities. FAAP agreements allow large contractors the flexibility to create AAPs by functional or business units rather than by individual establishments. For example, a company could develop an affirmative action program for all sales associates across multiple offices in different states as opposed to creating one for each work site.

OFCCP reviewed its policies regarding the FAAP process and made significant changes, including the requirement of written approval by the OFCCP director before contractors can begin developing FAAPs, thereby eliminating the provision for automatic approval if OFCCP failed to act upon the request within 120 days; shorter terms for FAAP agreements which will now expire after three years, instead of five, at which point a renewal will have to be approved; and the possibility of a compliance evaluation by OFCCP should contractors fail to submit the required annual updates to their FAAP agreements.

All contractors who currently have an approved FAAP agreement will be required to renew it in accordance with the new guidance. Contractors without these agreements should continue to maintain and develop establishment-based AAPs. Answers to frequently asked questions about the FAAP can be found at http://www.dol.gov/ofccp/regs/compliance/faqs/faapfaqs.htm.

The new guidance rescinds a previous directive, Administrative Notice/Functional AAP, issued March 21, 2002, and ends a yearlong suspension in the acceptance of requests to develop or renew FAAP agreements while the program was under review.

In addition to Executive Order 11246, OFCCP's legal authority exists under Section 503 of the Rehabilitation Act of 1973 and the Vietnam Era Veterans' Readjustment Assistance Act of 1974. As amended, these three laws hold those who do business with the federal government, both contractors and subcontractors, to the fair and reasonable standard that they not discriminate in employment on the basis of gender, race, color, religion, national origin, disability or status as a protected veteran. For more information visit http://www.dol.gov/ofccp/.

Common Sense Counsel: with great opportunity to contract with the federal government, also come great obligations. A Governmental contractor must maintain an approved written affirmative action plan, post appropriate notices on bulletin boards, training its supervisory workforce, self monitor its own compliance, establish goals and other related program requirements. Fair warning: this agency aggressively audits and investigates. Dealing with the government is clearly not a do-it-yourself program.

Tommy Eden is a Lee County native, an attorney with the local office of Capell & Howard, PC and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at tme@chlaw.com or 334-501-1540.