Commentary: Many companies use the calendar year (January to December) as the plan dates for their Affirmative Action Plans (AAPs). For companies that do so, it is important to remember that current year AAPs for Jan. 1, 2015, thru Dec. 31, 2015, will expire on Dec. 31, 2015.
Under federal law, government contractors and subcontractors with 50 or more employees who have entered into at least one contract of $50,000 or more with the federal government must prepare and maintain a written affirmative action program, which must be developed within 120 days from the commencement of the contract and must be updated annually. Many states also have affirmative action program requirements for state government contractors.
Depending upon the size of the government contracts at issue ($50,000, $100,000, or more), government contractors are required to develop affirmative action programs to comply with the regulations that support three separate federal laws. All three of these laws prohibit employment discrimination and require contractors to exercise good faith efforts so that certain protected classes have the opportunity to be hired and advance in employment. The three laws are: Executive Order 11246, which prohibits discrimination on the basis of race, color, religion, sex, or national origin; the Rehabilitation Act of 1973, which, prohibits discrimination on the basis of disability; and, the Vietnam Era Veterans Readjustment Assistance Act of 1974 (VEVRAA), which prohibits discrimination against certain classes of veterans.
Additionally, new federal regulations that took effect in 2014 require an identification and an evaluation of the company’s good faith efforts to recruit protected veterans and disabled individuals. This obligation will necessitate the contractor to list all of the recruiting efforts the company made during the Jan. 1, 2015, through Dec. 31, 2015, time period to recruit veterans and disabled individuals — along with an evaluation of the effectiveness of each effort (for example, “attended job fair on 12/2/15 at Veterans Arena, received 15 applications/resumes, interviewed 6 persons, hired 2 persons”).
Failure to comply with the non-discrimination or affirmative action provisions in a contract is considered a violation of the government contract. The Department of Labor’s Office of Federal Contract Compliance Program (OFCCP) is the agency with authority to enforce these laws by auditing a company’s AAPs and employment practices. The OFCCP has the authority to conduct compliance evaluations, which may consist of an off-site review of records and/or an on-site review of records and interviews. In every OFCCP audit, the Compliance Officer will request to review the current year AAP — so it is extremely important to ensure that all AAPs are properly updated each year.
Daniel A. Kaplan is a partner and litigation attorney with Foley & Lardner LLP. The information in this legal alert is for educational purposes only and should not be taken as specific legal advice.
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