BLOG: OFCCP Releases Technical Assistance Guide for Construction Contractors

December 4, 2019

By Sara Nasseri
Practice Areas: Government Contracts Law and Labor & Employment Law

In keeping with its commitment to offer more technical guidance for government contractors across all industries, the Office of Federal Contract Compliance Programs (OFCCP) recently published its Technical Assistance Guide (the Guide) for construction contractors. The OFCCP released the Guide as a self-assessment tool to help contractors review the equal employment opportunity practices they have in place. Using this tool, and fixing issues it might reveal, may help construction contractors avoid potential investigation and interruption to their business operations. For a full copy of the Guide, please visit OFCCP’s website here

The Guide addresses key objectives for construction contractors, including understanding Equal Employment Opportunity (EEO) legal obligations for federal contractors and implementing Standard Federal EEO Construction Contract Specifications.

Three major laws are enforced by OFCCP –

  1. Executive Order 11246, as amended (Executive Order);
  2. Section 503 of the Rehabilitation Act of 1973, as amended (Section 503); and
  3. Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended (VEVRAA).
Assuming a contractor falls within the laws’ different thresholds, these laws provide that construction contractors may not discriminate, and in fact must take affirmative action to ensure equal employment, with respect to certain enumerated protected classes. Those classes include: race, color, gender, religion, national origin, sexual orientation, gender identity, disability, and protected veteran status. Covered contractors also are obligated to employ and advance in employment qualified individuals with disabilities and protected veterans.

The Guide also provides step-by-step guidance on contractors’ obligations to include equal opportunity notices in job advertisements and solicitations, as well as equal opportunity clauses in their subcontracts and purchase orders. These requirements should not come as a surprise to experienced construction contractors, but the Guide does provide some helpful insights and reminders.

Executive Order 11246
Unlike federal supply and service contractors, federal construction contractors are not required to develop written Affirmative Action Programs (AAPs) for women and minorities under the Executive Order. Instead, in order to comply with the Executive Order, federal construction contractors must make good-faith efforts to meet OFCCP participation goals by taking 16 affirmative action steps outlined in the Guide. The 16 steps are bucketed under each of the following critical personnel activities: 1) Recruitment Practices; 2) Training; 3) EEO Policy and Implementation; 4) Personnel Operations; and 5) Contracting Activity.

The Guide not only offers an overview of each step and its corresponding requirements, but also offers contractors helpful examples of best business practices.

Section 503 and VEVRAA
In addition to following the Executive Order affirmative action steps, contractors covered by the written affirmative action requirements of Section 503 and VEVRAA must develop written AAPs to demonstrate compliance with OFCCP’s regulations implementing those two laws. The Guide offers some specific tips for AAP development. For example, the regulations require contractors to develop an AAP for each of the contractor’s establishments, and the Guide outlines two ways construction contractors may prepare and maintain AAPs while remaining in compliance.

Compliance Evaluations
Also noteworthy is the Guide’s extensive summary on how to prepare for a compliance evaluation. Indeed, OFCCP has reported completing over 1,300 compliance evaluations to date this fiscal year, 12 of which have been with construction contractors. The Guide offers an overview of what specific documented evidence compliance officers may be looking for, including evidence documenting the implementation of each of the specific affirmative action steps, evidence of compliance with the specific Section 503 and VEVRAA obligations, and evidence demonstrating that the contractor has complied with the applicable equal opportunity and affirmative action clauses.

The Guide provides an extensive overview of what obligations federal construction contractors have, as well as providing practical examples of how contractors can comply and best practices.

If you need assistance ensuring you are in compliance with OFCCP rules and regulations or are preparing for a compliance evaluation, please contact a member of PilieroMazza’s Labor & Employment Group.

Sara Nasseri, the author of this blog, is a member of the Firm’s Labor & Employment Group.

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