How to Navigate the Murky Waters of OFCCP Compliance Like an HR Pro
If you are a small or medium-sized business, you may be considering taking on (or already have) government contracts, and for good reason too. Doing business with the government provides access to a stable stream of revenue, a consistent work force and a wider client portfolio, all of which offer your business with great growth opportunities. However, keep in mind that every perk has a catch and government contracts are no different.
To secure a government contract and maintain it, there is a significant amount of laws and regulations that you must be compliant with. This legislation is administered, maintained and enforced by the Office of Federal Contract Compliance Programs or OFCCP. In the following paragraphs, we will provide you with some background on the OFCCP and explore the major laws that they enforce. Then we will offer you some resources to ensure that you are prepared to navigate the murky waters of Federal OFCCP compliance like an HR pro.
Remember, employers should always consult with an affirmative action expert or labor attorney throughout every step of the government contracting process.
What Does The OFCCP Do?
The OFCCP’s mission statement is as follows:
“The purpose of the Office of Federal Contract Compliance Programs (OFCCP) is to enforce, for the benefit of job seekers and wage earners, the contractual promise of affirmative action and equal employment opportunity required of those who do business with the Federal government.”
Essentially, the OFCCP works to ensure that Federal contractors are using non-discriminatory hiring practices so that all Americans have equal access to Federal jobs. The OFCCP does this through the administration and enforcement of legislation promoting affirmative action initiatives for individuals that fall under certain classes (discussed in the laws below).
All Federal contractors who do business with the Government in excess of $10,000 fall under the jurisdiction of these rules and regulations. As the monetary value of the contract and the employee size of the contractor increases, often times, so too does the stringency of these regulations.
Three Major Laws Enforced by the OFCCP
Below, we explore the three major laws that the OFCCP oversees. All three of these laws cover a classification of people protected by the OFCCP and stipulate that Federal contractors must have affirmative action plans to promote equal employment opportunities for them:
1. Executive Order 11246
Executive Order 11246 (Actual Verbiage) prohibits Federal contractors and subcontractors “from discriminating in employment decisions on the basis of race, color, religion, sex, sexual orientation, gender identity or national origin. The Executive Order also requires Government contractors to take affirmative action to ensure that equal opportunity is provided in all aspects of their employment.” – OFCCP
Recent Updates to Executive Order 11246
E.O. 11246 has seen several changes recently. In July of 2014, Obama signed Executive Order 13672, further amending E.O. 11246 by prohibiting discrimination on the basis of gender identity and sexual orientation. Additionally, Tuesday, June 14th, 2016, the OFCCP updated E.O. 11246 by setting forth a final ruling to update the Sex Discrimination Rule.
2. Section 503 of the Rehabilitation Act of 1973
Section 503 of the Rehabilitation Act of 1973 (Employment Law Guide) stipulates that Federal contractors must take affirmative action “to hire, retain, and promote qualified individuals with disabilities. The regulations implementing Section 503 make clear that this obligation to take affirmative steps includes the duty to refrain from discriminating in employment against qualified individuals on the basis of disability.”
The OFCCP has a robust resource center for Federal Contractors offering guidance on complying with Section 503. Additionally, they provide an example of a Voluntary Self-Identification Disability Form.
3. The Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA)
VEVRAA (Employment Law Guide) “prohibits federal contractors and subcontractors from discriminating in employment against protected veterans, and requires these employers to take affirmative action to recruit, hire, promote, and retain these veterans.”
Key topics covered by this act are hiring benchmarks, data collection, invitations to self-identify, incorporation of the EO clause, job listings and record access. You can see a summary of these topics here. Additionally, if you would like more guidance on complying with VEVRAA, the DOL has a resource center here.
Under VEVRAA, if you have a Federal contract exceeding $150,000, then you are required to file a VETS 4212 Report. Here is a program overview of VETS 4212 provided by the DOL.
Executive Order 13496
Another law that the OFCCP enforces is Executive Order 13496. Under this Order, Federal contractors and subcontractors are required to “inform their employees of their rights under the NLRA.” Primarily, this order looks to ensure that employees of Federal Contractors are aware of their right to enter into collective bargaining agreements.
So if You Have a Federal Contract, How Do You Protect Yourself?
The OFCCP and the DOL offer a wealth of resources to help Federal contractors and subcontractors ensure that they are compliant with these laws. To start, the DOL has put together a New Contractor’s Guide, which offers a comprehensive overview of everything that you need to be aware of when starting out as a government contractor.
Affirmative Action Plans
One key way to comply with the OFCCP is through affirmative action plans and questionnaires. The DOL and OFCCP also offer substantial resources offering guidance on how to build these out provided below.
Note: Affirmative Action Programs are required of contractors and subcontractors who employ 50+ and have a contract exceeding $50,000. The program must be created within 120 days of contract commencement and it is required to be updated annually. Additionally, many state governments require their contractors to have affirmative action programs with varying requirements. Lastly, courts can mandate that businesses with past discriminatory hiring practices implement an AAP.
Sample Affirmative Action Plan
SHRM: Affirmative Action: Internal AAP Checklist
Functional Affirmative Action Program (FAAP)
EEO Census Tabulations to be used to develop written Affirmative Action Plans
Other Great Resources for Federal Contractors
Guide for Small Businesses with Federal Contracts (OFCCP)
Federal Contract Compliance Manual (FCCM)
I want to find out if I am a Federal contractor or subcontractor
I am a Federal contractor or subcontractor and want to find out my obligations under the laws and regulations enforced by OFCCP
Small Business Regulatory Enforcement Fairness Act (SBREFA)
OFCCP Equal Employment Opportunity Posters
Employment Referral Resource Directory
EEO-1 Report Filing Instruction Booklet
Non-Retaliation Policy for Federal Contractors
Would You Pass an OFCCP Audit?
Are you a federal contractor? Have you been wondering how you would fare in the event of an OFCCP audit? Take 30 seconds to complete our OFCCP compliance risk calculator and receive a free assessment of your compliance standing today!