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Affirmative Action Plans

AAPs refer to programs created to overcome the effects of past societal discrimination by identifying areas of underutilization. AAPs may be required for Executive Order 11246, the Rehabilitation Act of 1973 (covered earlier in the chapter), and the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) of 1974.

AAPs set forth (and require documentation of) good faith efforts to address and resolve that underutilization.

Any and all nonconstruction federal contractors and subcontractors are required to design and maintain formal AAPs for each of their establishments if they have 50 or more employees and any of the following is true:

  1. They have a subcontract of $50,000 or more.
  2. They have government bills of lading which, in any 12-month period, total or can reasonably be expected to total $50,000 or more.
  3. They serve as a depository of government funds in any amount.
  4. They are a financial institution that is an issuing and paying agent for U.S. savings bonds and savings notes in any amount (www.dol.gov).

Executive Order 11246

A good place to start your review is with the fact sheet that the DOL has developed: www.dol.gov/ofccp/regs/compliance/aa.htm.

It’s important to familiarize yourself with all the elements of an AAP and, specifically, with how to prepare each of them. Some of the elements that are required to be in an AAP are detailed in the following sections.

Designation of Responsibility

This person—identified by name—is often an HR professional. He must have the necessary authority and resources to implement the AAP successfully. This must include the support of, and access to, top management. This is particularly important because the DOL is quite direct in its position that commitment to affirmative action should be an integral part of the organization’s functioning rather than an administrative add-on.

Organizational Display or Workforce Analysis

Nonconstruction contractors must prepare an organizational profile, which can be presented as either the new “organizational display” or the older workforce analysis. The proposed organizational profile is a shorter, simpler format, which in most cases would be based on the contractor’s existing organizational chart(s) to provide a depiction of the contractor’s workforce. This profile is essentially an organizational chart that includes summary information about incumbents’ race, gender, and wages. As per the DOL:

  • “The Organizational Display is a detailed chart of the contractor’s organizational structure. For each organizational unit, the display must indicate the following:

    • The name of the unit and the job title, race and gender of the unit supervisor
    • The total number of male and female incumbents and the total number of male and female incumbents in each of the following groups: Blacks, American Indians, Asians, Hispanics, and whites other than Hispanics”

Job Group Analysis

Nonconstruction contractors must also prepare a “job group analysis” intended to begin the process of comparing the employer’s representation of women and minorities to the estimated availability of qualified women and minorities who are available to be employed.

Availability Analysis

The new regulations still require contractors to determine the availability of minorities and women for jobs in their establishments, compare incumbency to availability, declare underutilization, and establish goals to eliminate the underutilization.

Utilization Analysis

Availability is then compared to incumbency, and if the percentage of minorities or women is lower than the availability—“less than would reasonably be expected given their availability percentage in that particular job group”—the contractor must establish a “placement goal” (41 C.F.R. §60-2.15); that is, the contractor must set goals to correct the underutilization.

Placement Goals

Placement goals are established for areas in which underutilization exists. Placement goals must be pursued through good faith efforts—not through the establishment of quotas. The “bottom line” is that, when underutilization exists, the placement goal must be set at an annual percentage rate equal to the availability figure for women or minorities. (It may be necessary, at times, to set goals for particular minority groups where significant underutilization exists.)

Action-Oriented Programs

The employer must develop and execute action-oriented programs that are specifically designed to correct any problem areas and to attain established placement goals. These action-oriented programs cannot just be “more of the same” less than fully effective procedures that resulted in these problem areas in the first place. Instead, the employer must demonstrate good faith efforts to remove identified barriers, expand employment opportunities, and produce measurable results.

Identification of Problem Areas

The contractor must perform in-depth analyses of its total employment process to determine whether and where impediments to equal employment opportunity exist.

Internal Audit and Reporting System

The contractor must develop and implement an auditing system that periodically measures the effectiveness of its total affirmative action program. The following actions are identified by the DOL as key to a successful affirmative action program:

  1. Monitor records of all personnel activity—including referrals, placements, transfers, promotions, terminations, and compensation—at all levels to ensure the nondiscriminatory policy is carried out.
  2. Require internal reporting on a scheduled basis as to the degree to which equal employment opportunity and organizational objectives are attained.
  3. Review report results with all levels of management.
  4. Advise top management of program effectiveness and submit recommendations to improve unsatisfactory performance.

Vietnam Era Veterans’ Readjustment Assistance Act, 1974

Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) requires employers with federal contracts or subcontracts of $25,000 or more to provide equal opportunity and affirmative action for Vietnam-era veterans, special disabled veterans, and veterans who served on active duty during a war or in a campaign or expedition for which a campaign badge has been authorized.

For purposes of VEVRAA, a Vietnam era veteran is a person who (1) served on active duty for a period of more than 180 days, any part of which occurred between August 5, 1964 and May 7, 1975, and was discharged or released with other than a dishonorable discharge; (2) was discharged or released from active duty for a service connected disability if any part of such active duty was performed between August 5, 1964 and May 7, 1975; or (3) served on active duty for more than 180 days and served in the Republic of Vietnam between February 28, 1961 and May 7, 1975.

VEVRAA requires employees with federal contracts or subcontracts of $100,000 or more must file a VETS-100A report by September 30 each year. The DOL has published the following information on the VETS-100 and VETS-100A forms.

Background

The U.S. DOL Veterans’ Employment and Training Service (VETS) is responsible for administering the requirement under the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA), 38 U.S.C. 4212(d), that federal contractors and subcontractors track and report annually to the Secretary of Labor the number of employees in their workforces who belong to the categories of veterans covered under the affirmative action provisions of the Act.

VETS has published implementing regulations at 41 CFR Part 61-250 that require federal contractors with a federal contract or subcontract of $25,000 or more that was entered into prior to December 1, 2003 to file a completed Federal Contractor Veterans’ Employment VETS-100 Report form (“VETS-100 Report”) annually.

The VETS-100 Report calls for federal contractors and subcontractors to report the number of employees and the number of new hires during the reporting period who are

  • (1) Special disabled veterans
  • (2) Veterans of the Vietnam era
  • (3) Veterans who served on active duty in the U.S. military during a war or a campaign or expedition for which a campaign badge has been authorized
  • (4) Recently separated veterans (veterans within one year from discharge or release from active duty)

The Jobs for Veterans Act (JVA), enacted in 2000, amended the reporting requirements under VEVRAA by increasing the dollar amount of the Federal contract and subcontract that triggers coverage and changing the categories of veterans that contractors and subcontractors are to track and report. The regulations at 41 CFR Part 61-300 implement the JVA amendments to the reporting requirements under VEVRAA and require federal contractors and subcontractors with a contract or subcontract of $100,000 or more awarded or modified on or after December 1, 2003, to file a VETS-100A Report.

Federal contractors and subcontractors completing the VETS-100A Report are to provide information on the number of employees and new hires during the reporting period who are

  • (1) Disabled veterans
  • (2) Veterans who served on active duty in the U.S. military during a war or campaign or expedition for which a campaign badge is awarded
  • (3) Veterans who, while serving on active duty in the Armed Forces, participated in a United States military operation for which an Armed Forces service medal was awarded pursuant to Executive Order 12985
  • (4) Recently separated veterans (veterans within 36 months from discharge or release from active duty)

Mandatory Job Listings

The OFCCP administers and enforces the affirmative action provisions of VEVRAA, which require federal contractors and subcontractors to employ and advance in employment qualified covered veterans. To implement the affirmative action requirement, VEVRAA and the implementing regulations at 41 CFR Part 60-250 and Part 60-300 issued by OFCCP require federal contractors and subcontractors to list most employment openings with the appropriate employment service delivery system, and each such employment service delivery system is required to give covered veterans priority in referrals to such openings. Executive and senior management positions, positions to be filled from within the contractor’s organization, and positions lasting three days or fewer are exempt from the mandatory job listing requirement. Listing jobs with the state workforce agency job bank or with the local employment service delivery system where the opening occurs will satisfy the requirement to list job openings with the appropriate employment service delivery system. Additional information on the mandatory job listing requirement is available on the OFCCP website.

Affirmative Action

OFCCP regulations implementing VEVRAA also require certain federal contractors and subcontractors to develop and maintain a written AAP. The AAP sets forth the policies and practices the contractor has in place to ensure that its personnel policies and practices do not limit employment opportunities for covered veterans. The AAP also spells out the steps the contractor will take to recruit, train, and promote covered veterans. Additional information about the written AAP is also available on the OFCCP website.

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