On November 13, 2000, the Labor Department published final regulations which will significantly streamline the obligations of federal contractors and subcontractors who maintain written affirmative action plans under Executive Order 11236.
Specifically, the regulations reduce the size and complexity of written affirmative action programs by:
Replacing the workforce analysis with an "organizational profile": An organizational profile can be completed in a one-page organizational chart that contains demographic information or by preparing a traditional workforce analysis.
Simplifying the eight factor availability analysis to two factors: The two remaining factors are the percentage of minorities and women with requisite skills in the reasonable recruitment area, and the percentage of minorities and women among those promotable, transferable and trainable within the contractor's organization.
Reducing the number of required elements of the written affirmative action plan ("AAP") from ten to four: The regulations no longer require contractors to affirm their EEO policy in their AAP, formally and informally disseminate the policy, support local and national community service programs or consider minorities and women not currently in the workforce. The only remaining elements required in "an acceptable affirmative action program" include the following: Designation of responsibility, identification of problem areas, action-oriented programs and internal audit and reporting systems.
Allowing contractors with fewer than 150 employees to choose to utilize EEO-1 categories as job groups.
In addition, the regulations reaffirm and strengthen the "no quota" policy. The final regulations specifically state that the purpose for the "Placement Goals" is to serve as objectives or targets reasonably attainable by means of applying every good faith effort to make all aspects of the entire affirmative action program work.
The regulations also provide assurances that the Office of Federal Contract Compliance Programs ("OFCCP") will treat the information it receives from the Surveys as "confidential to the maximum extent the information is exempt from public disclosure under the Freedom of Information Act." The regulations further state that it is the practice of the OFCCP not to release data where the contractor is still in business, and the contractor has informed the OFCCP that such data is confidential and sensitive and that the release of the data would subject the contractor to commercial harm.
Finally, the regulations clarify and formalize what many divisions of the Department of Labor were already stating — that the burden is on contractors to "demonstrate that every reasonable effort has been made to identify the gender, race and ethnicity of the applicant." This means that contractors have a duty to go out and attempt to determine the gender, race, and ethnicity of each applicant. The discussion published along with the regulations provides examples of ways to do this, including traditional tear-off sheets for those applicants who personally complete job applications, visual observation, or sending out "short form or postcards
requesting demographic information from applicants who respond to job advertisements in newspapers, electronic job posting services or other places."
One thing that the regulations did not do was respond to employers' opposition to the overly broad definition of "applicant," which requires contractors to maintain race and gender data on applicants, including those who submit electronic resumes and those who lack even minimal qualifications for the job. The final regulations leave the applicant definition unchanged, noting that the "OFCCP and other federal civil rights agencies have adhered to the same definition since. . .1979."
The new regulations also provide for the annual submission of an Equal Opportunity ("EO") Survey from designated contractors. The EO Survey contains information about personnel activities, compensation and tenure data and specific information about the contractor's affirmative action program. The final regulations provide that the OFCCP will send the Survey to half of all nonconstruction contractor establishments each year.
Although the regulations go into effect within 30 days from the date of their publication, federal contractors who have prepared plans under old regulations may maintain that plan for "the duration of the AAP year."
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