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Proposed Functional Affirmative Action Directive: A Follow-Up

Wednesday, December 5, 2018   (0 Comments)
Posted by: Kali Roberts
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On September 11, 2018, the OFCCP released its Proposed Directive with the intended purpose of reducing the burden for those who are developing, or wish to develop, Functional Affirmative Action Plans (FAAPS). Public comments on the proposed changes were solicited through November 13, 2018 and are now available for public perusal.

Commenters[1] to the Proposed Directive applauded OFCCP’s effort to “establish a FAAP request process that is simple, fluid, and collaborative.” However, they also all agreed that the proposed changes are not compelling enough to encourage more contractors to develop FAAPs. In our blog on the proposed FAAP directive published in the OFCCP Digest in September 2018 and again released thru Affirmative Action News in November 2018, we discussed reasons why a limited numbers of contractors choose to develop and maintain function-based AAPs – one of which is the overly burdensome requirements imposed on contractors. The requirements – from the application stage, through maintenance and even at the termination stage – though unintentional, seem almost punitive to those considering functional affirmative action plan development and a possible reason why there are currently only 71 contractors under FAAP agreements.

Commenters proposed additional recommendations they hoped the OFCCP would consider. The following outline a few of these recommendations:

  • Eliminate the FAAP approval process altogether. Commenters pointed out that there are no preapproval requirements for developing establishment-based AAPs and therefore, the same freedom should be afforded to contractors who choose to develop function-based AAPs. One commenter stated that such approval process, both for new FAAP developers and those seeking renewal for their existing agreement, “creates uncertainty [to contractors] regarding how future AAPs will be developed [added].”
  • Lessen the timeline for the approval process (i.e., in cases where the OFCCP will continue to require contractors to go through a pre-approval process to develop or continue to develop FAAPs). One commenter brought up the concern that the current process takes almost 12 to 18 months to complete. Such a drawn-out timeline is especially burdensome to contractors who are required to develop establishment-based AAPs while awaiting OFCCPs decision on their FAAP agreement application. The commenter also suggested that the OFCCP issue a conditional approval for contractors who submit complete and timely applications.
  • Eliminate the requirement for proof of federal contracts. Commenters pointed out that this is another requirement that is not required of contractors who develop establishment-based AAPs. Not only did the OFCCP underestimated the time and the personnel necessary to research and secure the federal contract information but also, technically and more importantly, it is the OFCCP’s burden to assess/prove the employer’s status as a federal contractor and not the other way around.
  • Eliminate the requirement to have at least 50 employees for a FAAP. The commenter pointed out that the regulations allow contractors to develop AAPs for establishments with less than 50 employees and hence, the same should be extended to contractors’ functional units with fewer than 50 employees. According to the commenter, some contractors resort to combining functional units to maintain or reach the 50-employee threshold for fear of losing their FAAP agreement. Such a practice does not best serve the principles and core purpose of FAAPs. Additionally, the commenter suggested that the OFCCP also eliminate the requirement to report the precise number of employees in each functional unit and instead, just require the contractor to indicate whether a unit has at least 50 employees.

The regulations have always required an approval from the OFCCP before a contractor can proceed to develop and maintain a FAAP.[2] On the other hand the Directives, past and present, provide the precise steps and requirements for the approval process. However, it would be really helpful if reasons behind the requirements could be provided within the Directives. For example, why does the OFFCP require contractors to provide copies of their federal contract? Why do FAAPs required to be pre-approved while establishment AAPs do not?
While there is no guarantee that the OFCCP will heed some or any of the recommendations from the commenters, we hope that some of these comments will receive serious considerations from the OFCCP and affect the drafting of the final Directive.

[1] Littler Mendelson, PC; National Industry Liaison Group; and Center for Workplace Compliance

[2] 41 CFR 60-2.1(d)(4)

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